G.R. No.

171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H.

HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners, 
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

x-------------------------------------x

G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, 

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,

AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S.
HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO
B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS
FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG,Petitioners, 
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA,
AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

x-------------------------------------x

G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.

LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, 
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, 

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE

AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III,
MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO
V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, 
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL
ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner, 
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-
GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA,
IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength – the use of force – cannot make wrongs into rights. In this regard,
the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically
their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government and in
favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws
and actions that restrict fundamental rights come to the courts "with a heavy presumption against
their constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines

and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
12 of the Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists – the historical enemies of the democratic
Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly constituted Government elected in May
2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain

segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State –
and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine State
and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested

in me under the Constitution as President of the Republic of the Philippines, and Commander-in-
Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No.
1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People’s Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from
petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet
members and President Arroyo herself.6 Upon the advice of her security, President Arroyo
decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his
arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino’s brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group’s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go for
the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-
Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was
no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that
the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017
and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.10

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She directed
both the AFP and the PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President’s mind were organized for purposes of
destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila
with the intention of converging at the EDSA shrine. Those who were already near the EDSA
site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen
used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used against
the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and
EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of national
emergency."  Director General Lomibao stated that "if they do not follow the standards – and the
standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse
in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos
regime, had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael

Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of Representatives where the
"Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In  G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,

Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency"
that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of
expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis
of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017
and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to
enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom
of expression and the right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections
1,16 2,17 and 418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of
the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming
that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O.
No. 5 are "unconstitutional for being violative of the freedom of expression, including its cognate
rights such as freedom of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions

should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda) have
legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of judicial
review.22

But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo’s
issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26 so that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on ground of
mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;31 second, the exceptional character of the situation and
the paramount public interest is involved;32third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; 33 and fourth, the
case is capable of repetition yet evading review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of expression, of assembly and
of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they
failed to take into account the Chief Justice’s very statement that an otherwise "moot" case may
still be decided "provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The present case falls right within this
exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative
to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court
ruled that for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest common to all members
of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that
the person who impugns the validity of a statute must have "a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46Pascual v. Secretary of
Public Works47 and Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted
the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:

(1)  Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;

(2)  Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;

(3)  Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress’ taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) the cases involve constitutional issues;

 (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue
as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court

reiterated the "direct injury" test with respect to concerned citizens’ cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong

Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members
of Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and
"unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor
General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of PP
No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is
a media personality will not likewise aid her because there was no showing that the enforcement
of these issuances prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But
considering once more the transcendental importance of the issue involved, this Court may relax
the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5
is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,67 may not be sued
in any  civil or criminal case, and there is no need to provide for it in the Constitution or law. It
will degrade the dignity of the high office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only
one constitutes the executive branch and anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people 68 but he may
be removed from office only in the mode provided by law and that is by impeachment.69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr.
v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government." 75Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order
to determine their constitutional sufficiency. From the principle of separation of powers, it
shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost
evenly divided on the issue of whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrilewhich greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is answerable only to
his conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the President’s
"calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Under the new definition of judicial power,
the courts are authorized not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government. 81 It
speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President’s
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down
is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the President’s decision is totally
bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this
Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of
PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists 
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it."84 But Locke recognized that this moral restraint might not
suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that"the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the
ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to
rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution
a regularized system of standby emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to meet the problem of combining
a capacious reserve of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as a
means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life."92 He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same
time "imposing limitation upon that power."93 Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short…Dictatorship should always be strictly
legitimate in character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of
concentrating power – in a government where power has consciously been divided – to cope
with… situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means – i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of the
constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme
of "constitutional dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the
"constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be

initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of

the man or men who will constitute the dictator…
 3) No government should initiate a constitutional dictatorship without making specific
provisions for its termination…

4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should

never be permanent in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted…

11) …the termination of the crisis must be followed by a complete return as possible to

the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100

Scott  and Cotter, in analyzing the above contemporary theories in light of recent experience,
were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of

emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of constitutionalism, he insisted
that the historical and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in the limiting of
it; between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain
meant government limited to the orderly procedure of law as opposed to the processes of
force. The two fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete political
responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from
Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and,
eventually, to McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson’s "balanced power structure."102 Executive,
legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme
Court, respectively. Each is supreme within its own sphere. But none has the monopoly of
power in times of emergency. Each branch is given a role to serve as limitation or check
upon the other. This system does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that
its enforcement encroached on both unprotected and protected rights under Section 4, Article III
of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on
its face and when ‘such summary action’ is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure
speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper applications
on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt to show whether this situation
exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt to show that
PP 1017 is vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"
Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most
to the least benign, these are: the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in
the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,114an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat
to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used
to stifle or persecute critics of the government. It is placed in the keeping of the President for the
purpose of enabling him to secure the people from harm and to restore order so that they can
enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her
in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President
is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to
it that all laws are enforced by the officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section
1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail
the clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of

the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and
a House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state
of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call
the military to enforce or implement certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article
XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public
interest.

What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports
to grant the President, without any authority or delegation from Congress, to take over or direct
the operation of any privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.122 In effect at the time of its approval was
President Marcos’ Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary
of National Defense to take over "the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila
(and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort
to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection can
be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that  Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by

Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over
or direct the operation of any privately owned public utility or business affected with
public interest," it refers to Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day fighting
in a theater of war. Such cases need not concern us here. Even though "theater of war" be an
expanding concept, we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from stopping production.
This is a job for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the
President’s power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President
is to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited
view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception. 127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.131 This is evident in the Records of the Constitutional
Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears
in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned public
utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which

extraordinary measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation
of powers, the fact remains that the Constitution has set up this form of government, with all its
defects and shortcomings, in preference to the commingling of powers in one man or group of
men. The Filipino people by adopting parliamentary government have given notice that they
share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific functions
of the legislative branch of enacting laws been surrendered to another department – unless we
regard as legislating the carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of constitutional government,
in times of extreme perils more than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to perform the duties and
discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing
PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill
of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune  Publishing Co., Inc. claimed that
on February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the President’s calling-out power. Its general purpose is to
command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search
or violate the citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.138This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed by policemen
in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders
are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.139 They are based on and are the product of, a relationship in which power is their
source, and obedience, their object.140 For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism"

confronts not only our country, but the international community as well. The following
observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become
one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions – or threats of the use of force as the
most recent by the United States against Iraq – consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach
a consensus on the basic issue of definition. The organization has intensified its efforts recently,
but has been unable to bridge the gap between those who associate "terrorism" with any violent
act by non-state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic and/or religious groups
within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the
United States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way – because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in
the position of an occupying power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in each
and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard
to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part
of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their
part. It must be remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal  x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized." 142 The plain import of the language
of the Constitution is that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was
detained for seven (7) hours; and seventh,he was eventually released for insufficiency of
evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without
a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts
with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was
the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on
the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect
to public affairs. It is a necessary consequence of our republican institution and complements the
right of speech. As in the case of freedom of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights embraced in the freedom of expression,
the right to assemble is not subject to previous restraint or censorship. It may not be conditioned
upon the prior issuance of a permit or authorization from the government authorities except, of
course, if the assembly is intended to be held in a public place, a permit for the use of such place,
and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to seditionand violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot
be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free speech
and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting
was held but as to its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their conspiracy or
other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly
and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the citizens’ right to
exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed
acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits,
the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits. 150 The first time
they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When
a person’s right is restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for publication; third, the search
was conducted at about 1:00 o’ clock in the morning of February 25, 2006; fourth,the search was
conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth,  policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’
to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." Director General Lomibao further stated that "if they do not follow
the standards –and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the duration of
the state of national emergency. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps
in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that officious functionary of
the repressive government who tells the citizen that he may speak only if allowed to do so, and
no more and no less than what he is permitted to say on pain of punishment should he be so rash
as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions
because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative democracy. It is the duty of the courts
to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are illegal;
and that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to
get the clippings. Is that not in admission of the admissibility of these clippings that were taken
from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o’clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say
this, we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for,
as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1
rallies" become "unruly and violent." Consequently, the transcendental issues raised by the
parties should not be "evaded;" they must now be resolved to prevent future constitutional
aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017’s extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all lawseven those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private business affected with
public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting
as Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard – that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and prevent acts of
lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed deleted from the said G.O.
While "terrorism" has been denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out
this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other
materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the
valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal
limits to arbitrary power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo
on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision
in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have
not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune  offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

 Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
 Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark –
Lecturer, Volume XIX, 1971, p. 29.
2
 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
3
 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480
B.C., who propounded universal impermanence and that all things, notably opposites are
interrelated.
4
 Respondents’ Comment dated March 6, 2006.
5
 Ibid.
6
 Ibid.
7
 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex "I" of
Respondents’ Consolidated Comment.
8
 Respondents’ Consolidated Comment.
9
 Ibid.
10
 Ibid.
11
 Petition in G.R. No. 171396, p. 5.
12
 Police action in various parts of Metro Manila and the reactions of the huge crowds
being dispersed were broadcast as "breaking news" by the major television stations of this
country.
13
 Petition in G.R. No. 171400, p. 11.
14
 Ibid.
15
 The prime duty of the Government is to serve and protect the people. The Government
may call upon the people to defend the State and, in the fulfillment thereof, all citizens
may be required, under conditions provided by law, to render personal military or civil
service.
16
 No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
17
 The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
18
 No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the Government for redress
of grievances.
19
 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
20
 In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over
or direct the operation of any privately owned public utility or business affected with
public interest.
21
 1 Cranch 137 [1803].
22
 Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on the
Constitution of the United States (Boston: Boston University Heffernan Press, 1939), pp.
376-77.
23
 The Court has no self-starting capacity and must await the action of some litigant so
aggrieved as to have a justiciable case. (Shapiro and Tresolini, American Constitutional
Law, Sixth Edition, 1983, p. 79).
24
 Cruz, Philippine Political Law, 2002 Ed., p. 259.
25
 Ibid.
26
 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
27
 Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March
10, 2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23,
2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11,
2003, 415 SCRA 590.
28
 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January
26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.
29
 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
30
 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.
31
 Province of Batangas v. Romulo, supra.
32
 Lacson v. Perez, supra.
33
 Province of Batangas v. Romulo, supra.
34
 Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA
98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v.
Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
35
 Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
36
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
37
 Black’s Law Dictionary, 6th Ed. 1991, p. 941.
38
 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
39
 275 Ky 91, 120 SW2d 765 (1938).
40
 19 Wend. 56 (1837).
41
 232 NC 48, 59 SE2d 359 (1950).
42
 302 U.S. 633.
43
 318 U.S. 446.
44
 65 Phil. 56 (1937).
45
 G.R. No. 117, November 7, 1945 (Unreported).
46
 G.R. No. 2947, January 11, 1959 (Unreported).
47
 110 Phil. 331 (1960).
48
 77 Phil. 1012 (1947).
49
 84 Phil. 368 (1949) The Court held: "Above all, the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure."
50
 L-No. 40004, January 31, 1975, 62 SCRA 275.
51
 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court
held that where the question is one of public duty and the enforcement of a public right,
the people are the real party in interest, and it is sufficient that the petitioner is a citizen
interested in the execution of the law;

Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA
530, where the Court held that in cases involving an assertion of a public right,
the requirement of personal interest is satisfied by the mere fact that the petitioner
is a citizen and part of the general public which possesses the right.

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L.

No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to
taxpayers’ lack of personality to sue may be disregarded in determining the
validity of the VAT law;

Albano v. Reyes,  G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the
Court held that while no expenditure of public funds was involved under the
questioned contract, nonetheless considering its important role in the economic
development of the country and the magnitude of the financial consideration
involved, public interest was definitely involved and this clothed petitioner with
the legal personality under the disclosure provision of the Constitution to question
it.
 Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled
that while petitioners are strictly speaking, not covered by the definition of a
"proper party," nonetheless, it has the discretion to waive the requirement, in
determining the validity of the implementation of the CARP.

Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452,
where the Court held that it enjoys the open discretion to entertain taxpayer’s suit
or not and that a member of the Senate has the requisite personality to bring a suit
where a constitutional issue is raised.

Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where
the Court held that petitioner as a taxpayer, has the personality to file the instant
petition, as the issues involved, pertains to illegal expenditure of public money;

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991,

199 SCRA 750, where the Court held that where serious constitutional questions
are involved, the "transcendental importance" to the public of the cases involved
demands that they be settled promptly and definitely, brushing aside technicalities
of procedures;

De Guia v. Comelec,  G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the
Court held that the importance of the issues involved concerning as it does the
political exercise of qualified voters affected by the apportionment, necessitates
the brushing aside of the procedural requirement of locus standi.
52
 G.R. No. 133250, July 9, 2002, 384 SCRA 152.
53
 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA
449.
54
 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
55
 Supra.
56
 G.R. No. 118910, November 16, 1995, 250 SCRA 130.
57
 G.R. No. 132922, April 21, 1998, 289 SCRA 337.
58
 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
59
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
60
 235 SCRA 506 (1994).
61
 Supra.
62
 Supra.
63
 197 SCRA 52, 60 (1991).
64
 Supra.
65
 See NAACP v. Alabama, 357 U.S. 449 (1958).
66
 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
67
 From the deliberations of the Constitutional Commission, the intent of the framers is
clear that the immunity of the President from suit is concurrent only with his tenure and
not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
68
 Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice,
and lead modest lives.
69
 Ibid., Sec. 2.
70
 No. 2908, September 30, 2005, 471 SCRA 87.
71
 91 Phil. 882 (1952).
72
 No. L-33964, December 11, 1971, 42 SCRA 448.
73
 No. L-35546, September 17, 1974, 59 SCRA 183.
74
 No. L-61388, April 20, 1983, 121 SCRA 472.
75
 Tañada v. Cuenco,  103 Phil. 1051 (1957).
76
 Lansang v. Garcia, supra, pp. 473 and 481.
77
 Supra.
78
 "Five Justices – Antonio, Makasiar, Esguerra, Fernandez, and Aquino – took the
position that the proclamation of martial law and the arrest and detention orders
accompanying the proclamation posed a "political question" beyond the jurisdiction of
the Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernandez,
and Aquino, argued that the Constitution had deliberately set up a strong presidency and
had concentrated powers in times of emergency in the hands of the President and had
given him broad authority and discretion which the Court was bound to respect. He made
reference to the decision in Lansang v. Garcia but read it as in effect upholding the
"political question" position. Fernandez, in a separate opinion, also argued Lansang, even
understood as giving a narrow scope of review authority to the Court, affirmed the
impossible task of ‘checking’ the action taken by the President. Hence, he advocated a
return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment
of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muñoz-
Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated
in Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted for
the view that "political questions are not per se beyond the Court’s jurisdiction ... but that
as a matter of policy implicit in the Constitution itself the Court should abstain from
interfering with the Executive’s Proclamation." (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 1996 Edition, p. 794.)
79
 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.
80
 Supra.
81
 Cruz, Philippine Political Law, 2002 Ed., p. 247.
82
 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
83
 Supra, 481-482.
84
 Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
85
 Ibid.
86
 The Social Contract  (New York: Dutton, 1950), pp. 123-124.
87
 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
88
 Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
89
 The Discourses, Bk. 1, Ch. XXXIV.
90
 Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
91
 Ibid.
92
 See The Problem of Constitutional Dictatorship, p. 328.
93
 Ibid., p. 353.
94
 Ibid., pp. 338-341.
95
 Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
96
 Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co.,
1949, p. 580.
97
 Ibid, pp. 574-584.
98
 Smith and Cotter, Powers of the President During Crises, 1972, p. 10.
99
 Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp.
298-306.
100
 Smith and Cotter, Powers of the President During Crises, 1972, p. 11.
101
 Smith and Cotter, Powers of the President During Crises, 1972, p. 12.
102
 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed.
1153 (1952), See Concurring Opinion J. Jackson.
103
 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No.
148560, November 19, 2001, 369 SCRA 393.
104
 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
105
 Supra.
106
 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.
107
 Broadrick v. Oklahoma, 413 U.S. 601 (1973).
108
 Ibid.
109
 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17,
4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106
L.Ed.2d 388 (1989).
110
 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693,
July 31, 1967, 20 SCRA 849 (1967).
111
 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained
President Arroyo’s declaration of a "state of rebellion" pursuant to her calling-out power.
112
 Supra.
113
 Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted
in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].
114
 Retired Associate Justice of the Supreme Court.
115
 Section 1, Article VII of the Constitution.
116
 Section 5, Article VII of the Constitution.
117
 Section 18, Article VII of the Constitution.
118
 Section 6, Article XVI of the Constitution.
119
 See Republic Act No. 6975.
120
 Ironically, even the 7th Whereas Clause of PP 1017 which states that "Article 2,
Section 4 of our Constitution  makes the defense and preservation of the democratic
institutions and the State the primary duty of Government" replicates more closely
Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987
Constitution which provides that, "[t[he prime duty of the Government is to serve and
protect the people."
121
 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry
of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v.
Commission on Election, supra.
122
 Section 17, Article XIV of the 1973 Constitution reads: "In times of national
emergency when the public interest so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected with public
interest."
123
 Antieau, Constitutional Construction, 1982, p.21.
124
 Cruz, Philippine Political Law, 1998, p. 94.
125
 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
126
 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.
127
 Smith and Cotter, Powers of the President During Crises, 1972, p. 14
128
 The Federal Emergency Relief Act of 1933 opened with a declaration that
the economic depressioncreated a serious emergency, due to wide-spread unemployment
and the inadequacy of State and local relief funds, . . . making it imperative that the
Federal Government cooperate more effectively with the several States and Territories
and the District of Columbia in furnishing relief to their needy and distressed people.
President Roosevelt in declaring a bank holiday a few days after taking office in 1933
proclaimed that "heavy and unwarranted withdrawals of gold and currency from …
banking institutions for the purpose of hoarding; ... resulting in "sever drains on the
Nation’s stocks of gold … have created a national emergency," requiring his action.
Enacted within months after Japan’s attack on Pearl Harbor, the Emergency Price
Control Act of 1942 was designed to prevent economic dislocations from endangering
the national defense and security and the effective prosecution of the war. (Smith and
Cotter, Powers of the President During Crises,  1972, p.18)
129
 The  Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the
emergency and necessity for relief in stricken agricultural areas and in another section
referred to "the present drought emergency."[129] The India Emergency Food Aid Act
of 1951 provided for emergency shipments of food to India to meet famine conditions
then ravaging the great Asian sub-continent. The Communication Act of 1934 and its
1951 amendment grant the President certain powers in time of "public peril or disaster."
The other statutes provide for existing or anticipated emergencies attributable to
earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides.[129] There is
also a Joint Resolution of April 1937. It made "funds available for the control of incipient
or emergency outbreaks of insect pests or plant diseases, including grasshoppers,
Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.
130
 National Security may be cataloged under the heads
of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The
Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an
enemy of the United States which conceivably would cause substantial damage or injury
to civilian property or persons in the United States by any one of several means;
sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological
means or other weapons or processes. Such an occurrence would cause a "National
Emergency for Civil Defense Purposes," or "a state of civil defense emergency," during
the term which the Civil Defense Administrator would have recourse to extraordinary
powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an
illustration in this context for emergency cooperation. "Emergency" as used in this
compact shall mean and include invasion, or other hostile
action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16)
131
 Cruz, Philippine Political Law, 1998, p. 95.
132
 Record of the Constitutional Commission, Vol. III, pp. 266-267.
133
 Record of the Constitutional Convention, pp. 648-649.
134
 84 Phil. 368 (1949).
135
 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
136
 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR
1261, cert den 280 US 610, 74 L ed 653, 50 S Ct 158.
137
 Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY
309, 105 NE 548.
138
 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
139
 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
140
 Ibid.
141
 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary
Lecture Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck
(Austria) and President of the International Progress Organization, speaking on "The
United Nations, The International Rule of Law and Terrorism" cited in the Dissenting
Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No. 151445, April 11,
2002, 380 SCRA 739.
142
 Section 2, Article III of the 1987 Constitution.
143
 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer,
p. 51.
144
 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
145
 An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble
and Petition the Government for Other Purposes.
146
 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
147
 Ibid.
148
 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
149
 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
150
 Section 5. Application requirements - All applications for a permit shall comply with
the following guidelines:

xxxxxx

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
151
 Petition in G.R. No. 171400, p. 11.
152
 No. L-64161, December 26, 1984, 133 SCRA 816.
153
 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R.
Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
 154
 Boyd v. United States, 116 U.S. 616 (1886).
155
 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
156
 Ibid., pp. 432-433.
157
 Ibid, pp. 507-508.
158
 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

SUMMARY OF THE VOTING IN THE PP 1017 DECISION

Fourteen of the 15 SC justices participated in the decision. Senior Associate Justice Reynato S.
Puno was on leave.

Justice Angelina Sandoval Gutierrez’s 78-page ponencia was concurred in by 10 Justices: Chief
Justice Artemio V. Panganiban and Justices Leonardo A. Quisumbing, Consuelo Ynares
Santiago, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio Morales, Romeo J.
Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and Cancio C. Garcia.

Both the Chief Justice and Justice Ynares-Santiago wrote separate concurring opinions. The
Chief Justice’s concurring opinion was joined by Justices Carpio, Carpio Morales, and Callejo,
Sr.

Justice Dante O. Tinga’s dissenting opinion was joined by Justices Renato C. Corona and
Presbitero J. Velasco, Jr.

EN BANC

G.R. No. 171396 – DAVID et al. v.  ARROYO, etc., et al. and related cases (G.R. Nos.
171409, 171483, 171485, 171400, 171424 and 171489)

Promulgated on:

May 3, 2006

x --------------------------------------------------------------------------- x

CONCURRING OPINION

CJ:

I was hoping until the last moment of our deliberations on these consolidated cases that the Court
would be unanimous in its Decision. After all, during the last two weeks, it decided with one
voice two equally contentious and nationally significant controversies involving Executive Order
No. 4641 and the so-called Calibrated Preemptive Response policy.2

However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting Opinion has made that hope
an impossibility. I now write, not only to express my full concurrence in the thorough and
elegantly written ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but more
urgently to express a little comment on Justice Tinga’s Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong
with PP 1017. It labels the PP a harmless pronouncement -- "an utter superfluity" -- and
denounces the ponencia as an "immodest show of brawn" that "has imprudently placed the Court
in the business of defanging paper tigers."

Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017 under
its present language and nuance. I respectfully disagree.

Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to some minds" --
"may have flirted with power." With due respect, this is a masterful understatement. PP 1017
may be a paper tiger, but -- to borrow the colorful words of an erstwhile Asian leader -- it has
nuclear teeth that must indeed be defanged.

Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives
and the perseverance of this Court in safeguarding the people’s constitutionally enshrined liberty.
They are playing with fire, and unless prudently restrained, they may one day wittingly or
unwittingly burn down the country. History will never forget, much less forgive, this Court if it
allows such misadventure and refuses to strike down abuse at its inception. Worse, our people
will surely condemn the misuse of legal hocus pocus to justify this trifling with constitutional
sanctities.

And even for those who deeply care for the President, it is timely and wise for this Court to set
down the parameters of power and to make known, politely but firmly, its dogged determination
to perform its constitutional duty at all times and against all odds. Perhaps this country would
never have had to experience the wrenching pain of dictatorship; and a past President would not
have fallen into the precipice of authoritarianism, if the Supreme Court then had the moral
courage to remind him steadfastly of his mortality and the inevitable historical damnation of
despots and tyrants. Let not this Court fall into that same rut.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
 Senate v. Ermita, GR No. 169777, April 20, 2006.
 2
 Bayan v. Ermita, GR No. 169838, April 25, 2006.

EN BANC

G.R. No. 171396 --- Professor Randolf S. David, et al., Petitioners, versus Gloria Macapagal-

Arroyo, as President and Commander-in-Chief, et al, Respondents.

G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune Publishing Co., Inc., Petitioners,
versus Honorable Secretary Eduardo Ermita and Honorable Director General Arturo C.
Lomibao, Respondents.

G.R. No. 171485 --- Francis Joseph G. Escudero, et al. Petitioners, versus Eduardo R.

Ermita, et al., Respondents.

G.R. No. 171483 --- Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog
and Secretary General Joel Maglunsod, et al., Petitioners, versus Her Excellency President
Gloria Macapagal Arroyo, et al., Respondents.

G.R. No. 171400 --- Alternative Law Groups, Inc.. (ALG), Petitioners, versus Executive

Secretary, Eduardo Ermita, et al., Respondents.

G.R. No. 171489 – Jose Anselmo I. Cadiz, et al., Petitioners,

versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.

G.R. No. 171424 --- Loren B. Legarda, Petitioner, versus President Gloria Macapagal-

Arroyo, in her capacity as President and Commander-in-Chief, et al., Respondents;

Promulgated:

May 3, 2006

x ---------------------------------------------------------------------------------------- x

CONCURRING OPINION

YNARES-SANTIAGO, J.:

The only real security for social well-being is the free exercise of men’s minds.

-Harold J. Laski, Professor of Government and Member of the British Labor Party, in his
book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo
once wrote, are preserved against the assaults of opportunism, the expediency of the passing
hour, the erosion of small encroachments, the scorn and derision of those who have no patience
with general principles.1 In an open and democratic society, freedom of thought and expression is
the matrix, the indispensable condition, of nearly every other form of freedom.2

I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President Gloria
Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO No. 5),
issued by the President pursuant to the same proclamation are both partly unconstitutional.

I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President,
as the Commander-in-Chief of all armed forces of the Philippines, of her power to call out such
armed forces whenever it becomes necessary to prevent or suppress lawless violence, invasion
or rebellion. This is allowed under Section 18, Article VII of the Constitution.

However, such "calling out" power does not authorize the President to direct the armed forces or
the police to enforce laws not related to lawless violence, invasion or rebellion. The same does
not allow the President to promulgate decrees with the force and effect similar or equal to laws
as this power is vested by the Constitution with the legislature. Neither is it a license to conduct
searches and seizures or arrests without warrant except in cases provided in the Rules of Court. It
is not a sanction to impose any form of prior restraint on the freedom of the press or expression
or to curtail the freedom to peaceably assemble or frustrate fundamental constitutional rights.

In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S. Azcuna emphasized that the
right to peaceably assemble and petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional
protection. These rights constitute the very basis of a functional democratic polity, without which
all the other rights would be meaningless and unprotected.

On the other hand, the direct reference to Section 17, Article XII of the Constitution as the
constitutional basis for the declaration of a state of national emergency is misplaced. This
provision can be found under the article on National Economy and Patrimony which presupposes
that "national emergency" is of an economic, and not political, nature. Moreover, the said
provision refers to the temporary takeover by the State of any privately-owned public utility or
business affected with public interest in times of national emergency. In such a case, the takeover
is authorized when the public interest so requires and subject to "reasonable terms" which the
State may prescribe.

The use of the word "State" as well as the reference to "reasonable terms" under Section 17,
Article XII can only pertain to Congress. In other words, the said provision is not self-executing
as to be validly invoked by the President without congressional authorization. The provision
merely declares a state economic policy during times of national emergency. As such, it cannot
be taken to mean as authorizing the President to exercise "takeover" powers pursuant to a
declaration of a state of national emergency.
The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the
power to take over or direct the operation of any privately owned public utility or business
affected with public interest without Congressional authorization. To do so would constitute
an ultra vires act on the part of the Chief Executive, whose powers are limited to the powers
vested in her by Article VII, and cannot extend to Article XII without the approval of Congress.

Thus, the President’s authority to act in times of national emergency is still subject to the
limitations expressly prescribed by Congress. This is a featured component of the doctrine of
separation of powers, specifically, the principle of checks and balances as applicable to the
political branches of government, the executive and the legislature.

With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed
forces and the national police "to prevent and suppress acts of terrorism and lawless violence in
the country." There is presently no law enacted by Congress that defines terrorism, or classifies
what acts are punishable as acts of terrorism. The notion of terrorism, as well as acts constitutive
thereof, is at best fraught with ambiguity. It is therefore subject to different interpretations by the
law enforcement agencies.

As can be gleaned from the facts, the lack of a clear definition of what constitutes "terrorism"
have led the law enforcement officers to necessarily guess at its meaning and differ as to its
application giving rise to unrestrained violations of the fundamental guarantees of freedom of
peaceable assembly and freedom of the press.

In Kolender v. Lawson,4 the United States Supreme Court nullified a state statute requiring
persons who loitered or wandered on streets to provide "credible and reliable" identification and
to account for their presence when requested to do so by a police officer. Writing for the
majority, Justice Sandra Day O’Connor noted that the most important aspect of vagueness
doctrine was the imposition of guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for invocation of that doctrine was
of special concern in this case because of the potential for arbitrary suppression of the
fundamental liberties concerning freedom of speech and expression, as well as restriction on the
freedom of movement.

Thus, while I recognize that the President may declare a state of national emergency as a
statement of a factual conditionpursuant to our ruling in Sanlakas v. Executive Secretary,5 I wish
to emphasize that the same does not grant her any additional powers. Consequently, while PP
1017 is valid as a declaration of a factual condition, the provisions which purport to vest in the
President additional powers not theretofore vested in her must be struck down. The provision
under GO No. 5 ordering the armed forces to carry out measures to prevent or suppress "acts of
terrorism" must be declared unconstitutional as well.

Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed
under the Bill of Rights cannot be preemptive in meeting any and all perceived or potential
threats to the life of the nation. Such threats must be actual, or at least gravely imminent, to
warrant government to take proper action. To allow government to preempt the happening of any
event would be akin to "putting the cart before the horse," in a manner of speaking. State action
is proper only if there is a clear and present danger of a substantive evil which the state has a
right to prevent. We should bear in mind that in a democracy, constitutional liberties must
always be accorded supreme importance in the conduct of daily life. At the heart of these
liberties lies freedom of speech and thought – not merely in the propagation of ideas we love, but
more importantly, in the advocacy of ideas we may oftentimes loathe. As succinctly articulated
by Justice Louis D. Brandeis:

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the
function of speech to free men from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the evil to be prevented is a serious one. x x x
But even advocacy of violation, however reprehensible morally, is not a justification for denying
free speech where the advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and conspiracy, must be borne
in mind. In order to support a finding of clear and present danger it must be shown either that
immediate serious violence was to be expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then contemplated.6

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.

CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes
1
 Cardozo, B. Nature of Judicial Process, 1921.
2
 Palko v. State of Connecticut, 302 U.S. 319 (1937).
3
 G.R. Nos. 169838, 169848, 169881, April 25, 2006.
4
 461 U.S. 352 (1983).
5
 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.
6
 Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357
(1927).

G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Tañada III, Ronald Llamas, H. Harry L.
Roque, Jr., Joel Ruiz Butuyan, Roger R. Rayel, Gary S. Mallari, Romel Regalado Bagares,
Christopher F.C. Bolastig, petitioners, v. Gloria Macapagal-Arroyo, as President and
Commander-in-Chief, Executive Secretary Eduardo Ermita, Hon. Avelino Cruz II, Secretary of
National Defense, General Generoso Senga, Chief of Staff, Armed Forces of the Philippines,
Director General Arturo Lomibao, Chief, Philippine National Police, respondents.)

G.R. No. 171409 (Niñez Cacho-Olivares and Tribune Publishing Co., Inc., petitioner, v.
Honorable Secretary Eduardo Ermita and Honorable Director General Arturo Lomibao,
respondents.)

G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago, Teodoro A. Casino, Agapito
A. Aquino, Mario G. Aguja, Satur C. Ocampo, Mujiv S. Hataman, Juan Edgardo Angara,
Teofisto DL. Guingona III, Emmanuel Josel J. Villanueva, Liza L. Maza, Imee R. Marcos,
Renato B. Magtubo, Justin Marc SB. Chipeco, Roilo Golez, Darlene Antonio-Custudio, Loretta
Ann P. Rosales, Josel G. Virador, Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel,
Ana Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F. Leonenen, Neri Javier
Colmenares, Movement of Concerned Citizens for Civil Liberties, represented by Amado Gat
Inciong, petitioners, v. Eduardo R. Ermita, Executive Secretary, Avelino J. Cruz, Jr., Secretary,
DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga, AFP Chief of Staff, Arturo Lumibao,
Chief PNP, respondents.)

G.R. No. 171483 (Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and
Secretary General Joel Maglunsod, National Federation of Labor Unions-Kilusang Mayo Uno
(NAFLU-KMU), represented by its National President, Joselito v. Ustarez, Antonio C. Pascual,
Salvador t. Carranza, Emilia P. Dapulang, Martin Custodio, Jr., and Roque M. Tan, petitioners,
v. Her Excellency, President Gloria Macapagal-Arroyo, The Honorable Executive Secretary,
Eduardo Ermita, The Chief of Staff, Armed Forces of the Philippines, Generoso Senga, and the
PNP Director General, Arturo Lomibao, respondents.)

G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v. Executive Secretary
Eduardo L. Ermita. Lt. Gen. Generoso Senga, and Director General Arturo Lomibao,
respondents.)

G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista, Romulo R. Rivera, Jose Amor
M. Amorado, Alicia A. Risos-Vidal, Felimon C. Abelita III, Manuel P. Legaspi, J.B., Jovy C.
Bernabe, Bernard L. Dagcuta, Rogelio V. Garcia and Integrated Bar of the Philippines (IBP),
petitioners, v. Hon. Executive Secretary Eduardo Ermita, General Generoso Senga, in his
capacity as AFP Chief of Staff, and Direcotr General Arturo Lomibao, in his capacity as PNP
Chief, respondents.)

G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria Macapagal-Arroyo, in her capacity as

President and Commander-in-Chief; Arturo Lomibao, in his capacity as Director-General of the
Philippine National Police (PNP); Generoso Senga, in his capacity as Chief of Staff of the
Armed Forces of the Philippine (AFP); and Eduardo Ermita, in his capacity as Executive
Secretary, respondents.)

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DISSENTING OPINION

TINGA, J:

I regret to say that the majority, by its ruling today, has imprudently placed the Court in the
business of defanging paper tigers. The immodest show of brawn unfortunately comes at the
expense of an exhibition by the Court of a fundamental but sophisticated understanding of the
extent and limits of executive powers and prerogatives, as well as those assigned to the judicial
branch. I agree with the majority on some points, but I cannot join the majority opinion, as it
proceeds to rule on non-justiciable issues based on fears that have not materialized, departing as
they do from the plain language of the challenged issuances to the extent of second-guessing the
Chief Executive. I respectfully dissent.

The key perspective from which I view these present petitions is my own ponencia in Sanlakas
v. Executive Secretary,1 which centered on Presidential Proclamation No. 427 (PP 427),
declaring a "state of rebellion" in 2003. The Court therein concluded that while the declaration
was constitutional, such declaration should be regarded as both regarded as "an utter superfluity",
which "only gives notice to the nation that such a state exists and that the armed forces may be
called to prevent or suppress it", and "devoid of any legal significance", and "cannot diminish or
violate constitutionally protected rights." I submit that the same conclusions should be reached as
to Proclamation No. 1017 (PP 1017). Following the cardinal precept that the acts of the
executive are presumed constitutional is the equally important doctrine that to warrant
unconstitutionality, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative implication.2 Also well-settled as a rule of construction is that where
thee are two possible constructions of law or executive issuance one of which is in harmony with
the Constitution, that construction should be preferred.3 The concerns raised by the majority
relating to PP 1017 and General Order Nos. 5 can be easily disquieted by applying this well-
settled principle.

I.

PP 1017Has No Legal Binding Effect; Creates No Rights and

Obligations; and Cannot Be Enforced or Invoked in a Court Of Law

First, the fundamentals. The President is the Chief of State and Foreign Relations, the chief of
the Executive Branch,4 and the Commander-in-Chief of the Armed Forces.5 The Constitution
vests on the President the executive power.6 The President derives these constitutional mandates
from direct election from the people. The President stands as the most recognizable
representative symbol of government and of the Philippine state, to the extent that foreign
leaders who speak with the President do so with the understanding that they are speaking to the
Philippine state.

Yet no matter the powers and prestige of the presidency, there are significant limitations to the
office of the President. The President does not have the power to make or legislate laws,7 or
disobey those laws passed by Congress.8 Neither does the President have to power to create
rights and obligations with binding legal effect on the Filipino citizens, except in the context of
entering into contractual or treaty obligations by virtue of his/her position as the head of State.
The Constitution likewise imposes limitations on certain powers of the President that are
normally inherent in the office. For example, even though the President is the administrative
head of the Executive Department and maintains executive control thereof, 9 the President is
precluded from arbitrarily terminating the vast majority of employees in the civil service whose
right to security of tenure is guaranteed by the Constitution.10

The President has inherent powers,11 powers expressly vested by the Constitution, and powers
expressly conferred by statutes. The power of the President to make proclamations, while
confirmed by statutory grant, is nonetheless rooted in an inherent power of the presidency and
not expressly subjected to constitutional limitations. But proclamations, as they are, are a species
of issuances of extremely limited efficacy. As defined in the Administrative Code, proclamations
are merely "acts of the President fixing a date or declaring a status or condition of public moment
or interest upon the existence of which the operation of a specific law or regulation is made to
depend".12 A proclamation, on its own, cannot create or suspend any constitutional or statutory
rights or obligations. There would be need of a complementing law or regulation referred to in
the proclamation should such act indeed put into operation any law or regulation by fixing a date
or declaring a status or condition of a public moment or interest related to such law or regulation.
And should the proclamation allow the operationalization of such law or regulation, all
subsequent resultant acts cannot exceed or supersede the law or regulation that was put into
effect.

Under Section 18, Article VII of the Constitution, among the constitutional powers of the
President, as Commander-in-Chief, is to "call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion".13 The existence of invasion or rebellion could allow the
President to either suspend the privilege of the writ of habeas corpus or place the Philippines or
any part thereof under martial law, but there is a fairly elaborate constitutional procedure to be
observed in such a case, including congressional affirmation or revocation of such suspension or
declaration, as well as the availability of judicial review. However, the existence of lawless
violence, invasion or rebellion does not ipso facto cause the "calling out" of the armed forces,
the suspension of habeas corpus or the declaration of martial law ─ it remains within the
discretion of the President to engage in any of these three acts should said conditions arise.

Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such

declaration could ostensibly predicate the suspension of the privilege of the writ of habeas
corpus or the declaration of martial law, but the President did not do so. Instead, PP 427, and the
accompanying General Order No. 4, invoked the "calling out" of the Armed Forces to prevent
lawless violence, invasion and rebellion. Appreciably, a state of lawless violence, invasion or
rebellion could be variable in scope, magnitude and gravity; and Section 18, Article VII allows
for the President to respond with the appropriate measured and proportional response.

Indeed, the diminution of any constitutional rights through the suspension of the privilege of the
writ or the declaration of martial law is deemed as "strong medicine" to be used sparingly and
only as a last resort, and for as long as only truly necessary. Thus, the mere invocation of the
"calling out" power stands as a balanced means of enabling a heightened alertness in dealing
with the armed threat, but without having to suspend any constitutional or statutory rights or
cause the creation of any new obligations. For the utilization of the "calling out" power alone
cannot vest unto the President any new constitutional or statutory powers, such as the enactment
of new laws. At most, it can only renew emphasis on the duty of the President to execute already
existing laws without extending a corresponding mandate to proceed extra-constitutionally or
extra-legally. Indeed, the "calling out" power does not authorize the President or the members of
the Armed Forces to break the law.

These were the premises that ultimately informed the Court’s decision in Sanlakas, which
affirmed the declaration of a "state of rebellion" as within the "calling out" power of the
President, but which emphasized that for legal intents and purposes, it should be both regarded as
"an utter superfluity", which "only gives notice to the nation that such a state exists and that the
armed forces may be called to prevent or suppress it," and "devoid of any legal significance," as
it could not "cannot diminish or violate constitutionally protected rights." The same premises
apply as to PP 1017.

A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in order.

PP 427 PP 1017

NOW, THEREFORE, I, GLORIA NOW, THEREFORE, I Gloria

MACAPAGAL-ARROYO, by virtue of Macapagal-Arroyo, President of the
the powers vested in me by law, hereby Republic of the Philippines and
confirm the existence of an actual and on- Commander-in-Chief of the Armed
going rebellion, compelling me to declare Forces of the Philippines, by virtue of the
a state of rebellion. powers vested upon me by Section 18,
Article 7 of the Philippine Constitution
In view of the foregoing, I am issuing which states that: "The President. . .
General Order No. 4 in accordance with whenever it becomes necessary, . . . may
Section 18, Article VII of the call out (the) armed forces to prevent or
Constitution, calling out the Armed suppress. . . rebellion. . .," and in my
Forces of the Philippines and the capacity as their Commander-in-Chief, do
Philippine National Police to immediately hereby command the Armed Forces of the
carry out the necessary actions and Philippines, to maintain law and order
measures to suppress and quell the throughout the Philippines, prevent or
rebellion with due regard to constitutional suppress all forms of lawless violence as
rights. well any act of insurrection or rebellion
and to enforce obedience to all the laws
and to all decrees, orders and regulations
promulgated by me personally or upon
my direction; and as provided in Section
17, Article 12 of the Constitution do
hereby declare a State of National
Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two distinct
phases. The first is the declaration itself of a status or condition, a "state of rebellion" in PP 437,
and a "state of national emergency" under PP 1017. Both "state of rebellion" and "state of
national emergency" are terms within constitutional contemplation. Under Section 18, Article
VII, the existence of a "state of rebellion" is sufficient premise for either the suspension of the
privilege of the writ of habeas corpus or the declaration of martial law, though in accordance
with the strict guidelines under the same provision. Under Section 17, Article XII, the existence
of a state of national emergency is sufficient ground for the State, during the emergency, under
reasonable terms prescribed by it, and when the public interest so requires, to temporarily take
over or direct the operation of any privately-owned public utility or business affected with public
interest. Under Section 23(2), Article VI, the existence of a state of national emergency may also
allow Congress to authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared national policy.

Certainly, the declaration could stand as the first step towards constitutional authorization for the
exercise by the President, the Congress or the State of extraordinary powers and prerogatives.
However, the declaration alone cannot put into operation these extraordinary powers and
prerogatives, as the declaration must be followed through with a separate act providing for the
actual utilization of such powers. In the case of the "state of rebellion," such act involves the
suspension of the writ or declaration of martial law. In the case of the "state of national
emergency," such act involves either an order for the takeover or actual takeover by the State of
public utilities or businesses imbued with public interest or the authorization by Congress for the
President to exercise emergency powers.

In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the writ or
the declaration of martial law. In PP 1017, the declaration of a "state of national emergency" did
not lead to an authorization for the takeover or actual takeover of any utility or business, or the
grant by Congress to the President of emergency powers. Instead, both declarations led to the
invocation of the calling out power of the President under Section 18, Article VII, which the
majority correctly characterizes as involving only "ordinary police action."

I agree with the ponencia’s holding that PP 1017 involves the exercise by the President of the
"calling out" power under Section 18, Article VII. In Integrated Bar v. Zamora,14 the Court was
beseeched upon to review an order of President Estrada commanding the deployment of the
Marines in patrols around Metro Manila, in view of an increase in crime.15 The Court, speaking
through Justice Santiago Kapunan, affirmed the President’s order, asserting that "it is the
unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the
Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do
so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner
can show that the exercise of such discretion was gravely abused, the President’s exercise of
judgment deserves to be accorded respect from this Court."16 Tellingly, the order of deployment
by President Estrada was affirmed by the Court even though we held the view that the power
then involved was not the "calling out" power, but "the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare."17
It was also maintained in Integrated Bar that while Section 18, Article VII mandated two
conditions ─ actual rebellion or invasion and the requirement of public safety ─ before the
suspension of the privilege of the writ of habeas corpus or the declaration of martial law could
be declared, "these conditions are not required in the case of the power to call out the armed
forces. The only criterion is that ‘whenever it becomes necessary’, the President may call the
armed forces ‘to suppress lawless violence, invasion or rebellion."18 The Court concluded that
the implication was "that the President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers."19

These propositions were affirmed in Sanlakas, wherein the invocation of the calling out power
was expressly made by President Arroyo. The Court noted that for the purpose of exercising the
calling out power, the Constitution did not require the President to make a declaration of a state
of rebellion.20 At the same time, the Court in Sanlakas acknowledged that "the President’s
authority to declare a state of rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her Commander-in-Chief powers."21

For still unclear reasons, the majority attempts to draw a distinction between Sanlakas and the
present petitions by that the statutory authority to declare a "state of rebellion" emanates from the
Administrative Code of 1987, particularly the provision authorizing the President to make
proclamations. As such, the declaration of a "state of rebellion," pursuant to statutory authority,
"was merely an act declaring a status or condition of public moment or interest." The majority
grossly misreads Sanlakas, which expressly roots the declaration of a state of rebellion from the
wedded powers of the Chief Executive, under Section 1, Article VII, and as Commander-in-
Chief, under Section 18, Article VII.

Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the
directive to the Armed Forces of the Philippines to "suppress all forms of lawless violence". But
there are nuances to the calling out power invoked in PP 1017 which the majority does not
discuss. The directive "to suppress all forms of lawless violence" is addressed not only to the
Armed Forces but to the police as well. The "calling out" of the police does not derive from
Section 17, Article VII, or the commander-in-chief clause, our national police being civilian in
character. Instead, the calling out of the police is sourced from the power of the President as
Chief Executive under Section 1, Article VII, and the power of executive control under Section
18, Article VII. Moreover, while the permissible scope of military action is limited to acts in
furtherance of suppressing lawless violence, rebellion, invasion, the police can be commanded
by the President to execute all laws without distinction in light of the presidential duty to execute
all laws.22

Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the discretion of
the Chief Executive in the exercise of the "calling out" power due to a recognition that the said
power is of limited import, directed only to the Armed Forces of the Philippines, and incapable
of imposing any binding legal effect on the citizens and other branches of the Philippines.
Indeed, PP 1017 does not purport otherwise. Nothing in its operative provisions authorize the
President, the Armed Forces of the Philippines, or any officer of the law, to perform any extra-
constitutional or extra-legal acts. PP 1017 does not dictate the suspension of any of the people’s
guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a state of emergency under PP
1017 nor the invocation of the calling out power therein authorizes warrantless arrests,
searches or seizures; the infringement of the right to free expression, peaceable assembly
and association and other constitutional or statutory rights. Any public officer who
nonetheless engaged or is engaging in such extra-constitutional or extra-legal acts in the
name of PP 1017 may be subjected to the appropriate civil, criminal or administrative
liability.

To prove this point, let us now compare PP 1017 with a different presidential issuance, one that
was intended to diminish constitutional and civil rights of the people. The said issuance,
Presidential Proclamation No. 1081, was issued by President Marcos in 1972 as the instrument of
declaring martial law. The operative provisions read:

PD. 1081 PP 1017

Now, thereof, I, Ferdinand E. Marcos, NOW, THEREFORE, I Gloria

President Of the Philippines, by virtue of Macapagal-Arroyo, President of the
the powers vested upon me by article VII, Republic of the Philippines and
Section 10, Paragraph (2) of the Commander-in-Chief of the Armed
Constitution, do hereby place the entire Forces of the Philippines, by virtue of the
Philippines as defined in the article I, powers vested upon me by Section 18,
Section 1, of the Constitution under Article 7 of the Philippine Constitution
martial law, and in my capacity as their which states that: "The President. . .
commander-in-chief, do hereby command whenever it becomes necessary, . . . may
the arned forces of the Philippines, to call out (the) armed forces to prevent or
maintain law and order throughout the suppress. . . rebellion. . .," and in my
Philippines, prevent or suppress all forms capacity as their Commander-in-Chief, do
of lawless violence as well as any act of hereby command the Armed Forces of the
insurrection or rebellion and to enforce Philippines, to maintain law and order
obedience to all the laws and decrees, throughout the Philippines, prevent or
orders and regulations promulgated by me suppress all forms of lawless violence as
personally or upon my direction. well any act of insurrection or rebellion
and to enforce obedience to all the laws
In addition, I do hereby order that all and to all decrees, orders and regulations
persons presently detained, as well as promulgated by me personally or upon
others who may hereafter be similarly my direction; and as provided in Section
detained for the crimes of insurrection or 17, Article 12 of the Constitution do
rebellion, and all other crimes and hereby declare a State of National
offenses committed in furtherance or on Emergency.
the occasion thereof, or incident thereto,
or in connection therewith, for crimes
against national security and the law of
nations, crimes, against the fundamental
laws of the state, crimes against public
order, crimes involving usurpation of
authority, rank, title and improper use of
names, uniforms and insignia, crimes
committed by public officers, and for
such other crimes as will be enumerated
in Orders that I shall subsequently
promulgate, as well as crimes as a
consequence of any violation of any
decree, order or regulation promulgated
by me personally or promulgated upon
my direction shall be kept under detention
until otherwise ordered released by me or
by my duly designated representative.
(emphasis supplied)

Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017 merely
declared the existence of a state of rebellion, an act ultimately observational in character, PP
1081 "placed the entire Philippines under martial law," an active implement 23 that, by itself,
substituted civilian governmental authority with military authority. Unlike in the 1986
Constitution, which was appropriately crafted with an aversion to the excesses of Marcosian
martial rule, the 1935 Constitution under which PP 1081 was issued left no intervening
safeguards that tempered or limited the declaration of martial law. Even the contrast in the verbs
used, "place" as opposed to "declare," betrays some significance. To declare may be simply to
acknowledge the existence of a particular condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual condition even if it did not exist
before.

Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts of
such power are wildly distaff in light of PP 1081’s accompanying declaration of martial law.
Since martial law involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is significantly greater than the one
involved in PP 1017, which could only contemplate the enforcement of existing laws in relation
to the suppression of lawless violence, rebellion or invasion and the maintenance of general
peace and order.

Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner that
PP 1017 does not even ponder upon is the subsequent paragraph cited, which authorizes the
detention and continued detention of persons for a plethora of crimes not only directly related to
the rebellion or lawless violence, but of broader range such as those "against national security,"
or "public order." The order of detention under PP 1081 arguably includes every crime in the
statute book. And most alarmingly, any person detained by virtue of PP 1081 could remain in
perpetual detention unless otherwise released upon order of President Marcos or his duly
authorized representative.
Another worthy point of contrast concerns how the Supreme Court, during the martial law era,
dealt with the challenges raised before it to martial law rule and its effects on civil liberties.
While martial law stood as a valid presidential prerogative under the 1935 Constitution, a ruling
committed to safeguard civil rights and liberties could have stood ground against even the most
fundamental of human rights abuses ostensibly protected under the 1935 and 1973 constitutions
and under international declarations and conventions. Yet a perusal of Aquino v. Enrile,24 the
case that decisively affirmed the validity of martial law rule, shows that most of the Justices then
sitting exhibited diffidence guised though as deference towards the declaration of martial law.
Note these few excerpts from the several opinions submitted in that case which stand as typical
for those times:

The present state of martial law in the Philippines is peculiarly Filipino and fits into no
traditional patterns or judicial precedents. xxx In the first place I am convinced (as are the other
Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a
state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter
of contemporary history within the cognizance not only of the courts but of all observant people
residing here at that time. xxx The state of rebellion continues up to the present. The argument
that while armed hostilities go on in several provinces in Mindanao there are none in other
regions except in isolated pockets in Luzon, and that therefore there is no need to maintain
martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in
a modern setting. It does not consist simply of armed clashes between organized and identifiable
groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting. Underground
propaganda, through printed newssheets or rumors disseminated in whispers; recruiting of armed
and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column
activities including sabotage and intelligence ─ all these are part of the rebellion which by their
nature are usually conducted far from the battle fronts. They cannot be counteracted effectively
unless recognized and dealt with in that context.25

xxx

[T]he fact that courts are open cannot be accepted as proof that the rebellion and insurrection,
which compellingly called for the declaration of martial law, no longer imperil the public safety.
Nor are the many surface indicia adverted to by the petitioners (the increase in the number of
tourists, the choice of Manila as the site of international conferences and of an international
beauty contest) to be regarded as evidence that the threat to public safety has abated. There is
actual armed combat, attended by the somber panoply of war, raging in Sulu and Cotabato, not to
mention the Bicol region and Cagayan Valley. I am hard put to say, therefore, that the
Government’s claim is baseless.

I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex
parte Moyer, if it were the liberty alone of the petitioner Diokno that is in issue we would
probably resolve the doubt in his favor and grant his application. But the Solicitor General, who
must be deemed to represent the President and the Executive Department in this case, has
manifested that in the President’s judgment peace and tranquility cannot be speedily restored in
the country unless the petitioners and others like them meantime remain in military custody. For,
indeed, the central matter involved is not merely the liberty of isolated individuals, but the
collective peace, tranquility and security of the entire nation.26

xxx

It may be that the existence or non-existence or imminence of a rebellion of the magnitude that
would justify the imposition of martial law is an objective fact capable of judicial notice, for a
rebellion that is not of general knowledge to the public cannot conceivably be dangerous to
public safety. But precisely because it is capable of judicial notice, no inquiry is needed to
determine the propriety of the Executive’s action.

Again, while the existence of a rebellion may be widely known, its real extent and the dangers it
may actually pose to the public safety are not always easily perceptible to the unpracticed eye. In
the present day practices of rebellion, its inseparable subversion aspect has proven to be more
effective and important than "the rising (of persons) publicly and taking arms against the
Government" by which the Revised Penal Code characterizes rebellion as a crime under its
sanction. Subversion is such a covert kind of anti-government activity that it is very difficult
even for army intelligence to determine its exact area of influence and effect, not ot mention the
details of its forces and resources. By subversion, the rebels can extend their field of action
unnoticed even up to the highest levels of the government, where no one can always be certain of
the political complexion of the man next to him, and this does not exclude the courts. Arms,
ammunition and all kinds of war equipment travel and are transferred in deep secrecy to strategic
locations, which can be one’s neighborhood without him having any idea of what is going on.
There are so many insidious ways in which subversives act, in fact too many to enumerate, but
the point that immediately suggests itself is that they are mostly incapable of being proven in
court, so how are We to make a judicial inquiry about them that can satisfy our judicial
conscience.

The Constitution definitely commits it to the Executive to determine the factual bases and to
forthwith act as promptly as possible to meet the emergencies of rebellion and invasion which
may be crucial to the life of the nation. He must do this with unwavering conviction, or any
hesitancy or indecision on his part will surely detract from the needed precision in his choice of
the means he would employ to repel the aggression. The apprehension that his decision might be
held by the Supreme Court to be a transgression of the fundamental law he has sworn to ‘defend
and preserve’ would deter him from acting when precisely it is most urgent and critical that he
should act, since the enemy is about to strike the mortal blow.27

xxx

To start with, Congress was not unaware of the worsening conditions of peace and order and of,
at least, evident insurgency, what with the numerous easily verifiable reports of open rebellious
activities in different parts of the country and the series of rallies and demonstrations, often
bloody, in Manila itself and other centers of population, including those that reached not only the
portals but even the session hall of the legislature, but the legislators seemed not to be
sufficiently alarmed or they either were indifferent or did not know what to do under the
circumstances. Instead of taking immediate measures to alleviate the conditions denounced and
decried by the rebels and the activists, they debated and argued long on palliatives without
coming out with anything substantial much less satisfactory in the eyes of those who were
seditiously shouting for reforms. In any event, in the face of the inability of Congress to meet the
situation, and prompted by his appraisal of a critical situation that urgently called for immediate
action, the only alternative open to the President was to resort to the other constitutional source
of extraordinary powers, the Constitution itself.28

xxx

Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering

detention of persons, the Proclamation pointedly limits arrests and detention only to those
"presently detained, as well as others who may hereafter be similarly detained for the crimes of
insurrection or rebellion, and all other crimes and offences committed in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith, for crimes against national
security and the law of nations, crimes, against the fundamental laws of the state, crimes against
public order, crimes involving usurpation of authority, rank, title and improper use of names,
uniforms and insignia, crimes committed by public officers, and for such other crimes as will be
enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of
any violation of any decree, order or regulation promulgated by me personally or promulgated
upon my direction." Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, it is merely in a
state of anaesthesia, to the end that the much needed major surgery to save the nation’s life may
be successfully undertaken.29

xxx

The quoted lines of reasoning can no longer be sustained, on many levels, in these more
enlightened times. For one, as a direct reaction to the philosophy of judicial inhibition so
frequently exhibited during the Marcos dictatorship, our present Constitution has explicitly
mandated judicial review of the acts of government as part of the judicial function. As if to
rebuff Aquino, the 1987 Constitution expressly allows the Supreme Court to review the
sufficiency of the factual basis of the proclamation of martial law and decide the same within 30
days from the filing of the appropriate case.30 The Constitution also emphasizes that a state of
martial law did not suspend the operation of the Constitution or supplant the functioning of the
judicial and legislative branches.31 The expediency of hiding behind the political question
doctrine can no longer be resorted to.

For another, the renewed emphasis within domestic and international society on the rights of
people, as can be seen in worldwide democratic movements beginning with our own in 1986,
makes it more difficult for a government established and governed under a democratic
constitution, to engage in official acts that run contrary to the basic tenets of democracy and civil
rights. If a government insists on proceeding otherwise, the courts will stand in defense of the
basic constitutional rights of the people.

Still, the restoration of rule under law, the establishment of national governmental
instrumentalities, and the principle of republicanism all ensure that the constitutional government
retains significant powers and prerogatives, for it is through such measures that it can exercise
sovereign will in behalf of the people. Concession to those presidential privileges and
prerogatives should be made if due. The abuses of past executive governments should not detract
from these basic governmental powers, even as they may warrant a greater degree of wariness
from those institutions that balance power and the people themselves. And the rule of law should
prevail above all. The damage done by martial rule was not merely personal but institutional, and
the proper rebuke to the caprices and whims of the iniquitous past is to respect the confines of
the restored rule of law.32

Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to
matching PP 1081. It is a rank insult to those of us who suffered or stood by those oppressed
under PP 1081 to even suggest that the innocuous PP 1017 is of equivalent import.

PP 1017 Does Not Purport or Pretend that the President Has The Power to Issue Decrees

There is one seeming similarity though in the language of PP 1017 and PP 1081, harped upon by
some of the petitioners and alluded to by the majority. PP 1017 contains a command to the
Armed Forces "to enforce obedience to all the laws and to all decrees, orders and regulations by
[the President]". A similar command was made under PP 1081. That in itself should not be a
cause of surprise, since both PP 1017 and PP 1081 expressly invoked the "calling out" power,
albeit in different contexts.

The majority however considers that since the President does not have the power to issue
decrees, PP 1017 is unconstitutional insofar as it enforces obedience "to all decrees." For one, it
should be made clear that the President currently has no power to issue decrees, and PP 1017 by
no measure seeks to restore such power to the President. Certainly, not even a single decree was
issued by President Arroyo during the several days PP 1017 was in effect, or during her term
thus far for that matter.

At the same time, such power did once belong to the President during the Marcos era and was
extensively utilized by President Marcos. It has to be remembered that chafed as we may have
under some of the Marcos decrees, per the 1987 Constitution they still remain as part of the law
of the land unless particularly stricken down or repealed by subsequent enactments. Indeed,
when the President calls upon the Armed Forces to enforce the laws, those subsisting presidential
decrees issued by President Marcos in the exercise of his legislative powers are included in the
equation.

This view is supported by the rules of statutory construction. The particular passage in PP 1017
reads ""to enforce obedience to all the laws and to all decrees, orders and regulations," with the
phrases "all the laws and to all decrees" separated by a comma from "orders and regulations
promulgated by me." Inherently, laws and those decrees issued by President Marcos in the
exercise of his legislative powers, and even those executive issuances of President Aquino in the
exercise of her legislative powers, belong to the same class, superior in the hierarchy of laws
than "orders and regulations." The use of the conjunction "and" denotes a joinder or union,
"relating the one to the other."33 The use of "and" establishes an association between laws and
decrees distinct from orders and regulations, thus permitting the application of the doctrine of
noscitur a sociis to construe "decrees" as those decrees which at present have the force of law.
The dividing comma further signifies the segregation of concepts between "laws and decrees" on
one hand, and "orders and regulations" on the other.

Further proof that "laws and decrees" stand as a class distinct from "orders and regulations" is
the qualifying phrase "promulgated by me," which necessarily refers only to orders and
regulations. Otherwise, PP 1017 would be ridiculous in the sense that the obedience to be
enforced only relates to laws promulgated by President Arroyo since she assumed office in 2001.
"Laws and decrees" do not relate only to those promulgated by President Arroyo, but other laws
enacted by past sovereigns, whether they be in the form of the Marcos presidential decrees, or
acts enacted by the American Governor-General such as the Revised Penal Code. Certainly then,
such a qualification sufficiently addresses the fears of the majority that PP 1017 somehow
empowers or recognizes the ability of the current President to promulgate decrees. Instead, the
majority pushes an interpretation that, if pursued to its logical end, suggests that the President by
virtue of PP 1017 is also arrogating unto herself, the power to promulgate laws, which are in the
mold of enactments from Congress. Again, in this respect, the grouping of "laws" and "decrees"
separately from "orders" and "regulations" signifies that the President has not arrogated unto
herself the power to issue decrees in the mold of the infamous Marcos decrees.

Moreover, even assuming that PP 1017 was intended to apply to decrees which the current
President could not very well issue, such intention is of no consequence, since the proclamation
does not intend or pretend to grant the President such power in the first place. By no measure of
contemplation could PP 1017 be interpreted as reinstating to the President the power to issue
decrees.

I cannot see how the phrase "enforce obedience to decrees" can be the source of constitutional
mischief, since the implementation of PP 1017 will not vest on the President the power to issue
such decrees. If the Court truly feels the need to clarify this point, it can do so with the
expediency of one sentence or even a footnote. A solemn declaration that the phrase is
unconstitutional would be like killing a flea with dynamite when insect powder would do.

PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of The Presidency

Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in relation to
the citizenry, the courts or on Congress. Still, there is another purpose and dimension behind PP
1017 that fall within the valid prerogatives of the President.

The President, as head of state, is cast in a unique role in our polity matched by no other
individual or institution. Apart from the constitutional powers vested on the President lie those
powers rooted in the symbolic functions of the office. There is the common expectation that the
President should stand as the political, moral and social leader of the nation, an expectation not
referred to in of the oath of office, but expected as a matter of tradition. In fact, a President may
be cast in crisis even if the Chief Executive has broken no law, and faithfully executed those
laws that exist, simply because the President has failed to win over the hearts and minds of the
citizens. As a Princeton academic, Woodrow Wilson once observed that with the People, the
President is everything, and without them nothing, and the sad decline of his own eventual
presidency is no better proof of the maxim. Such are among the vagaries of the political office,
and generally beyond judicial relief or remedy.

Justice Robert Jackson’s astute observation in Youngstown Sheet & Tube Co. v. Sawyer34 on the
unique nature of the presidency, has been widely quoted:

Executive power has the advantage of concentration in a single head in whose choice the whole
Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude,
and finality, his decisions so far overshadow any others that almost alone he fills the public eye
and ear. No other personality in public life can begin to compete with him in access to the public
mind through modern methods of communications. By his prestige as head of state and his
influence upon public opinion he exerts a leverage upon those who are supposed to check and
balance his power which often cancels their effectiveness.35

Correspondingly, the unique nature of the office affords the President the opportunity to
profoundly influence the public discourse, not necessarily through the enactment or enforcement
of laws, but specially by the mere expediency of taking a stand on the issues of the day. Indeed,
the President is expected to exercise leadership not merely through the proposal and enactment
of laws, but by making such vital stands. U.S. President Theodore Roosevelt popularized the
notion of the presidency as a "bully pulpit", in line with his belief that the President was the
steward of the people limited only by the specific restrictions and prohibitions appearing in the
Constitution, or impleaded by Congress under its constitutional powers.

Many times, the President exercises such prerogative as a responsive measure, as after a mass
tragedy or calamity. Indeed, when the President issues a declaration or proclamation of a state of
national mourning after a disaster with massive casualties, while perhaps de rigeur, is not the
formalistic exercise of tradition, but a statement that the President, as the representative of the
Filipino people, grieves over the loss of life and extends condolences in behalf of the people to
the bereaved. This is leadership at its most solemn.

Yet the President is not precluded, in the exercise of such role, to be merely responsive. The
popular expectation in fact is of a pro-active, dynamic chief executive with an ability to identify
problems or concerns at their incipience and to respond to them with all legal means at the
earliest possible time. The President, as head of state, very well has the capacity to use the office
to garner support for those great national quests that define a civilization, as President Kennedy
did when by a mere congressional address, he put America on track to the goal of placing a man
on the moon. Those memorable presidential speeches memorized by schoolchildren may have
not, by themselves, made operative any law, but they served not only merely symbolic functions,
but help profoundly influence towards the right direction, the public opinion in the discourse of
the times. Perhaps there was no more dramatic example of the use of the "bully pulpit" for such
noble purposes than in 1964, when an American President from Texas stood before a Congress
populated by many powerful bigots, and fully committed himself as no other President before to
the cause of civil rights with his intonation of those lines from the civil rights anthem, "we shall
overcome."
From an earlier era in American history, Lincoln’s Emancipation Proclamation stands out as a
presidential declaration which clearly staked American polity on the side of the democratic ideal,
even though the proclamation itself was of dubitable legal value. The proclamation, in short
form, "freed the slaves", but was not itself free of legal questions. For one, the notion that the
President could, by himself, alter the civil and legal status of an entire class of persons was
dubious then and now, although President Lincoln did justify his action as in the exercise of his
powers as commander-in-chief during wartime, "as a fit and necessary war measure for
suppressing [the] rebellion." Moreover, it has been pointed out that the Proclamation only freed
those slaves in those states which were then in rebellion, and it eventually took the enactment of
the Thirteenth Amendment of the U.S. Constitution to legally abolish involuntary
servitude.36 Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still
stands as a defining example not only of the Lincoln Presidency, but of American democratic
principles. It may be remembered to this day not exactly as an operational means by which
slaves were actually freed, but as a clear rhetorical statement that slavery could no longer
thenceforth stand.

The President as Chief Government Spokesperson of the democratic ideals is entrusted with a
heady but comfortable pursuit. But no less vital, if somewhat graver, is the role of the President
as the Chief Defender of the democratic way of life. The "calling out" power assures the
President such capability to a great extent, yet it will not fully suffice as a defense of democracy.
There is a need for the President to rally the people to defend the Constitution which guarantees
the democratic way of life, through means other than coercive. I assert that the declaration of a
state of emergency, on premises of a looming armed threat which have hardly been disputed,
falls within such proper functions of the President as the defender of the Constitution. It was
designed to inform the people of the existence of such a threat, with the expectation that the
citizenry would not aid or abet those who would overturn through force the democratic
government. At the same time, the Proclamation itself does not violate the Constitution as it does
not call for or put into operation the suspension or withdrawal of any constitutional rights, or
even create or diminish any substantive rights.

I submit that it would be proper for the Court to recognize that PP 1017 strikes a commendable
balance between the Constitution, the "calling out" power, and the inherent function of the
Presidency as defender of the democratic constitution. PP 1017 keeps within the scope and
limitations of these three standards. It asserts the primacy of the democratic order, civilian
control over the armed forces, yet respects constitutional and statutory guarantees of the people.

II.

Section 17, Article XII of the Constitution In Relation to PP 1017

My next issue with the majority pertains to the assertion that the President does not have the
power to take over public utilities or businesses impressed with public interest under Section 17,
Article XII of the Constitution without prior congressional authorization. I agree that the power
of the State to take over such utilities and businesses is highly limited, and should be viewed
with suspicion if actually enforced.
Yet qualifications are in order with regard to how Section 17, Article XII actually relates of PP
1017.

I agree with the majority that a distinction should be asserted as between the power of the
President to declare a state of emergency, and the exercise of emergency powers under Section
17, Article XII. The President would have the power to declare a state of emergency even
without Section 17, Article XII.

At the same time, it should be recognized that PP 1017, on its face and as applied, did not
involve the actual takeover of any public utility or business impressed with public interest. To
some minds, the police action in relation to the Daily Tribune may have flirted with such power,
yet ultimately the newspaper was able to independently publish without police interference or
court injunction. It may be so that since PP 1017 did make express reference to Section 17,
Article XII, but it should be remembered that the constitutional provision refers to a two-fold
power of the State to declare a national emergency and to take over such utilities and enterprises.
The first power under Section 17, Article XII is not distinct from the power of the President,
derived from other constitutional sources, to declare a state of national emergency. Reference to
Section 17, Article XII in relation to the power to declare a state of national emergency is
ultimately superfluous. A different situation would obtain though if PP 1017 were invoked in the
actual takeover of a utility or business, and in such case, full consideration of the import of
Section 17, Article XII would be warranted. But no such situation obtains in this case, and any
discussion relating to the power of the State to take over a utility or business under Section 17,
Article XII would ultimately be obiter dictum.

I respectfully submit that the Court, in these petitions, need not have engaged this potentially
contentious issue, especially as it extends to whether under constitutional contemplation, the
President may act in behalf of the State in exercising the powers under Section 17, Article XII.
Nonetheless, considering that the majority has chosen to speak out anyway, I will express
agreement that as a general rule, the President may exercise such powers under Section 17,
Article XII only under the grant of congressional approval. Certainly, the notion that
congressional authority is required under Section 17, Article XII is not evident from the
provision. Even Fr. Bernas notes that Section 17 does not require, as does Article VI, Section
23(2), that the authorization be "by law", thus leaving the impression that the authorization can
come from the President.37

After the 1989 coup d’etat, President Aquino issued issued Proclamation No. 503 on 6 December
1989, declaring a state of national emergency, and referring therein to Section 17, Article XII by
citing the entire provision. The declaration was subsequently reaffirmed by Congress when two
weeks after, it enacted Republic Act No. 6826. Notably, Section 3(3) of the law authorized the
President "to temporarily takeover or direct the operation of any privately-owned public utility or
business affected with public interest that violates the herein declared national policy". Tellingly,
however, such authority was granted by Congress expressly "pursuant to Article VI, Section
23(2) of the Constitution", and not the take-over provision in Section 17, Article XII. Evidently,
the view that Section 17, Article XII requires prior congressional authority has some novelty to
it.
Still, I concede that it is fundamentally sound to construe Section 17 as requiring congressional
authority or approval before the takeover under the provision may be effected. After all, the
taking over of a privately owned public utility or business affected with public interest would
involve an infringement on the right of private enterprise to profit; or perhaps even expropriation
for a limited period. Constitutionally, the taking of property can only be accomplished with due
process of law,38 and the enactment of appropriate legislation prescribing the terms and
conditions under which the President may exercise the powers of the State under Section 17
stands as the best assurance that due process of law would be observed.

The fact that Section 17 is purposely ambivalent as to whether the President may exercise the
power therein with or without congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in extreme situations wherein
obtention of congressional authority is impossible or inexpedient considering the emergency. I
thus dissent to any proposition that such requirement is absolute under all circumstances. I
maintain that in such extreme situations, the President may exercise such authority subject to
judicial review.

It should be admitted that some emergencies are graver and more imminent than others. It is not
within the realm of impossibility that by reason of a particularly sudden and grave emergency,
Congress may not be able to convene to grant the necessary congressional authority to the
President. Certainly, if bombs from a foreign invader are falling over Manila skies, it may be
difficult, not to mention unnecessarily onerous, to require convening Congress before the
President may exercise the functions under Section 17, Article XII. The proposition of the
majority may be desirable as the general rule, but the correct rule that should be adopted by the
Court should not be so absolute so as to preclude the exercise by the President of such power
under extreme situations.

In response to this argument, the majority cites portions of Araneta v. Dinglasan,39 most

pertinent of which reads: "The point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of crisis no matter how serious."

For one, Araneta did not involve a situation wherein the President attempted to exercise
emergency powers without congressional authority; concerning as it did the exercise by
President Quirino of those emergency powers conferred several years earlier by Congress to
President Quezon at the onset of the Pacific phase of World War II. The Court therein ruled that
the emergency that justified then the extraordinary grant of powers had since expired, and that
there no longer existed any authority on the part of the President to exercise such powers,
notwithstanding that the law, Commonwealth Act No. 671, "did not in term fix the duration of its
effectiveness".

Clearly, the context in which the Court made that observation in Araneta is not the same context
within which my own observations oscillate. My own submission is premised on the extreme
situation wherein Congress may be physically unable to convene, an exceptional circumstance
which the hard-line stance of the majority makes no concessions for.
Indeed, even the factual milieu recounted in Araneta  conceded that such extreme circumstance
could occur, when it noted President Quezon’s claim that he was impelled to call for a special
session of the National Assembly after foreseeing that "it was most unlikely that the Philippine
Legislature would hold its next regular session which was to open on January 1, 1942." 40 That
the National Assembly then was able to convene and pass Commonwealth Act No. 671 was
fortunate, but somewhat a luxury nonetheless. Indeed, it is not beyond the realm of possibility
that the emergency contemplated would be so grave that a sufficient number of members of
Congress would be physically unable to convene and meet the quorum requirement.

Ultimately though, considering that the authorized or actual takeover under Section 17, Article
XII, is not presented as a properly justiciable issue. Nonetheless, and consistent with the general
tenor, the majority has undertaken to decide this non-justiciable issue, and to even place their
view in the dispositive portion in a bid to enshrine it as doctrine. In truth, the Court’s
pronouncement on this point is actually obiter. It is hoped that should the issue become ripe for
adjudication before this Court, the obiter is not adopted as a precedent without the qualification
that in extreme situations wherein congressional approval is impossible or highly impractical to
obtain, the powers under Section 17, Article XII may be authorized by the President.

III.

Overbreadth and "Void for Vagueness" Doctrines Applicable Not Only To Free Speech Cases

The majority states that "the overbreadth doctrine is an analytical tool developed for testing ‘on
their faces’ statutes in free speech cases"41, and may thus be entertained "in cases involving
statutes which, by their terms, seek to regulate only ‘spoken words’, and not conduct. A similar
characterization is made as to the "void for vagueness" doctrine, which according to the majority,
is "subject to the same principles governing overbreadth doctrine … also an analytical tool for
testing ‘on their faces’ statutes in free speech cases."42

As I noted in my Separate Opinion in Romualdez v. Sandiganbayan, 43 citing Justice Kapunan,

there is a viable distinction between "void for vagueness" and "overbreadth" which the majority
sadly ignores.

A view has been proferred that "vagueness and overbreadth doctrines are not applicable to penal
laws." These two concepts, while related, are distinct from each other. On one hand, the
doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech.
On the other hand, the "void-for-vagueness" doctrine applies to criminal laws, not merely
those that regulate speech or other fundamental constitutional right. (not merely those that
regulate speech or other fundamental constitutional rights.) The fact that a particular
criminal statute does not infringe upon free speech does not mean that a facial challenge to the
statute on vagueness grounds cannot succeed.44

The distinction may prove especially crucial since there has been a long line of cases in
American Supreme Court jurisprudence wherein penal statutes have been invalidated on the
ground that they were "void for vagueness." As I cited in Romualdez v. Sandiganbayan,45 these
cases are Connally v. General Construction Co,.46 Lanzetta v. State of New Jersey,47 Bouie v.
City of Columbia,48 Papachristou v. City of Jacksonville,49 Kolender v. Lawson,50and City of
Chicago v. Morales.51

Granting that perhaps as a general rule, overbreadth may find application only in "free
speech"52 cases, it is on the other hand very settled doctrine that a penal statute regulating
conduct, not speech, may be invalidated on the ground of "void for vagueness". In Romualdez, I
decried the elevation of the suspect and radical new doctrine that the "void for vagueness"
challenge cannot apply other than in free speech cases. My view on this point has not changed,
and insofar as the ponencia would hold otherwise, I thus dissent.

Moreover, even though the argument that an overbreadth challenge can be maintained only in
free speech cases has more jurisprudential moorings, the rejection of the challenge on that basis
alone may prove unnecessarily simplistic. I maintain that there is an even stronger ground on
which the overbreadth and "void for vagueness" arguments can be refuted ─ that Presidential
Proclamation 1017 (PP 1017) neither creates nor diminishes any rights or obligations
whatsoever. In fact, I submit again that this proposition is the key perspective from which the
petitions should be examined.

IV.

General Order No. 5

Suffers No Constitutional Infirmity

The majority correctly concludes that General Order No. 5 is generally constitutional. However,
they make an unnecessary distinction with regard to "acts of terrorism", pointing out that
Congress has not yet passed a law defining and punishing terrorism or acts of terrorism.

That may be the case, but does the majority seriously suggest that the President or the State is
powerless to suppress acts of terrorism until the word "terrorism" is defined by law? Terrorism
has a widely accepted meaning that encompasses many acts already punishable by our general
penal laws. There are several United Nations and multilateral conventions on terrorism 53, as well
as declarations made by the United Nations General Assembly denouncing and seeking to
combat terrorism.54 There is a general sense in international law as to what constitutes terrorism,
even if no precise definition has been adopted as binding on all nations. Even without an
operative law specifically defining terrorism, the State already has the power to suppress and
punish such acts of terrorism, insofar as such acts are already punishable, as they almost always
are, in our extant general penal laws. The President, tasked with the execution of all existing
laws, already has a sufficient mandate to order the Armed Forces to combat those acts of
terrorism that are already punishable in our Revised Penal Code, such as rebellion, coup d’etat,
murder, homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts which
under normal contemplation would constitute terrorism are associated anyway with or subsumed
under lawless violence, which is a term found in the Constitution itself. Thus long ago, the State
has already seen it fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts, since
such power belongs to the legislative alone. Fortunately, General Order No. 5 does not assume to
make such redefinitions. It may have been a different matter had General Order No. 5 attempted
to define "acts of terrorism" in a manner that would include such acts that are not punished under
our statute books, but the order is not comported in such a way. The proper course of action
should be to construe "terrorism" not in any legally defined sense, but in its general sense. So
long as it is understood that "acts of terrorism" encompasses only those acts which are already
punishable under our laws, the reference is not constitutionally infirm.

The majority  cites a theoretical example wherein a group of persons engaged in a drinking spree
may be arrested by the military or police in the belief that they were committing acts of terrorism
pursuant to General Order No. 5. Under the same logical framework that group of persons
engaged in a drinking spree could very well be arrested by the military or police in the belief that
they are committing acts of lawless violence pursuant to General Order No. 5, instead of acts of
terrorism. Obviously such act would be "abuse and oppression" on the part of the military and
the police, whether justified under "lawless violence" or "acts of terrorism". Yet following the
logic of the majority, the directive to prevent acts of "lawless violence" should be nullified as
well.

If the point of the majority is that there are no justiciable standards on what constitutes acts of
terrorism, it should be pointed out that only the following scenarios could ensue. For one, a
person would actually be arrested and charged with "acts of terrorism", and such arrest or charge
would be thrown out of the courts, since our statute books do not criminalize the specific crime
of terrorism. More probably, a person will be arrested and charged for acts that may under the
layperson’s contemplation constitutes acts of terrorism, but would be categorized in the
information and charge sheet as actual crimes under our Revised Penal Code. I simply cannot see
how General Order No. 5 could validate arrests and convictions for non-existent crimes.

Interestingly, the majority, by taking issue with the lack of definition and possible broad context
of "acts of terrorism", seems to be positively applying the arguments of "overbreadth" or "void
for vagueness", arguments which they earlier rejected as applicable only in the context of free
expression cases. The inconsistency is breath-taking. While I disagree with the majority-imposed
limitations on the applicability of the "overbreadth" or "void for vagueness" doctrines, I likewise
cannot accede to the application of those doctrines in the context of General Order No. 5, for the
same reason that they should not apply to PP 1017. Neither General Order No. 5 nor PP 1017 is a
penal statute, or have an operative legal effect of infringing upon liberty, expression or property.
As such, neither General Order No. 5 nor PP 1017 can cause the deprivation of life, liberty or
property, thus divorcing those issuances from the context of the due process clause. The same
absence of any binding legal effect of these two issuances correspondingly disassociates them
from the constitutional infringement of free expression or association. Neither "void for
vagueness" nor "overbreadth" therefore lie.

Another point. The majority concludes from General Order No. 5 that the military or police is
limited in authority to perform those acts that are "necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence," and such acts
committed beyond such authority are considered illegal. I do not dispute such conclusion, but it
must be emphasized that "necessary and appropriate actions and measures" precisely do not
authorize the military or police to commit unlawful and unconstitutional acts themselves, even if
they be geared towards suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or obligations, or diminish existing ones,
it necessarily follows that General Order No. 5, even if premised on a state of emergency,
cannot authorize the military or police to ignore or violate constitutional or statutory
rights, or enforce laws completely alien to the suppression of lawless violence. Again,
following the cardinal principle of legal hermeneutics earlier adverted to, General Order No. 5
should be viewed in harmony with the Constitution, and only if it the Order irreconcilably
deviates from the fundamental law should it be struck down.

V.

Court Should Refrain Making Any Further Declaration, For Now,

Relating to the Individual Grievances Raised by the Petitioners in Relation To PP 1017

I respectfully disagree with the manner by which the majority would treat the "void as applied"
argument presented by the petitioners. The majority adopts the tack of citing three particular
injuries alleged by the petitioners as inflicted with the implementation of PP 1017. The majority
analyzes the alleged injuries, correlates them to particular violations of the Bill of Rights, and
ultimately concludes that such violations were illegal.

The problem with this approach is that it would forever deem the Court as a trier or reviewer at
first instance over questions involving the validity of warrantless arrests, searches, seizures and
the dispersal of rallies, all of which entail a substantial level of factual determination. I agree that
PP 1017 does not expand the grounds for warrantless arrests, searches and seizures or dispersal
of rallies, and that the proclamation cannot be invoked before any court to assert the validity of
such unauthorized actions. Yet the problem with directly adjudicating that the injuries inflicted
on David, et al., as illegal, would be that such would have been done with undue haste, through
an improper legal avenue, without the appropriate trial of facts, and without even impleading the
particular officers who effected the arrests/searches/seizures.

I understand that the injurious acts complained of by the petitioners upon the implementation of
PP 1017 are a source of grave concern. Indubitably, any person whose statutory or constitutional
rights were violated in the name of PP 1017 or General Order No. 5 deserves redress in the
appropriate civil or criminal proceeding, and even the minority wishes to makes this point as
emphatically clear, if not moreso, as the majority. Yet a ruling from this Court, without the
proper factual basis or prayer for remuneration for the injury sustained, would ultimately
be merely symbolic. While the Court will not be harmed by a symbolic reaffirmation of
commitment to the principles in the Bill of Rights, it will be harmed by a ruling that unduly
and inappropriately expands the very limited function of the Court as a trier of facts on
first instance.

In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that our legal system may run
counter-intuitive in the sense that the seemingly or obviously guilty may still, after trial, be
properly acquitted or exonerated; to the extent that even an accused who murders another person
in front of live television cameras broadcast to millions of sets is not yet necessarily guilty of the
crime of murder or homicide.56 Hence, the necessity of a proper trial so as to allow the entire
factual milieu to be presented, tested and evaluated before the court. In my theoretical example,
the said accused should nonetheless be acquitted if the presence of exempting circumstances is
established. The same principle applies in these cases. Certainly, we in the Court can all agree
that PP 1017 cannot be invoked to justify acts by the police or military officers that go beyond
the Constitution and the laws. But the course of prudence dictates that the pronouncement of
such a doctrine, while enforceable in a court of law, should not yet extend itself to specific
examples that have not yet been properly litigated. The function of this Court is to make legal
pronouncements not based on "obvious" facts, but on proven facts.

A haphazard declaration by the Court that the arrests or seizures were "illegal" would likewise
preclude any meaningful review or reevaluation of pertinent legal doctrines that otherwise could
have been reexamined had these acts been properly challenged in regular order. For example, the
matter of the warrantless arrests in these cases could have most certainly compelled the Court to
again consider the doctrine laid down in Umil v. Ramos on warrantless arrests and rebellion as a
continuing crime, a doctrine that may merit renewed evaluation. Yet any healthy reexamination
of Umil, or other precedents for that matter, require the presentation and trial of the proper
factual predicates, a course which the majority unfortunately "short-cuts" in this present decision.

Of course, despite the grandiloquent pronouncement by the majority that the acts complained of
by the petitioners and implemented pursuant to General Order No. 5 are illegal, it could
nonetheless impose civil, criminal or administrative sanctions on the individual police officers
concerned, as these officers had not been "individually identified and given their day in court".
Of course, the Court would be left with pie on its face if these persons, once "given their day in
court", would be able to indubitably establish that their acts were actually justified under law.
Perhaps worse, the pronouncement of the majority would have had the effect of prejudging these
cases, if ever lodged, even before trial on the merits.

Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify
violation of statutory or constitutional rights (a declaration which the minority would have no
qualms assenting to) would sufficiently arm those petitioners and other persons whose rights
may have been injured in the implementation of PP 1017, with an impeccable cause of action
which they could pursue against the violators before the appropriate courts. At the same time, if
the officers or officials concerned have basis to contend that no such rights were violated, for
justifications independent of PP 1017 or General Order No. 5, such claims could receive due
consideration before the courts. Such a declaration would squarely entrench the Court as a
defender of the Bill of Rights, foster enforceable means by which the injured could seek actual
redress for the injury sustained, and preserve the integrity and order of our procedural law.

VI.

Conclusion

The country-wide attention that the instant petitions have drawn should not make the Court lose
focus on its principal mission, which is to settle the law of the case. On the contrary, the highly
political nature of these petitions should serve as forewarning for the Court to proceed ex
abundante cautelam, lest the institution be unduly dragged into the partisan mud. The credibility
of the Court is ensured by making decisions in accordance with the Constitution without regard
to the individual personalities involved; with sights set on posterity, oblivious of the popular
flavor of the day.

By deciding non-justiciable issues and prejudging cases and controversies without a proper trial
on the merits, the majority has diminished the potency of this Court’s constitutional power in
favor of rhetorical statements that afford no quantifiable relief. It is for the poet and the politician
to pen beautiful paeans to the people’s rights and liberties, it is for the Court to provide for viable
legal means to enforce and safeguard these rights and liberties. When the passions of these times
die down, and sober retrospect accedes, the decision of this Court in these cases will be looked
upon as an extended advisory opinion.

Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested and
tasked with preserving our civil liberties. They may even stand, in the appropriate contexts, as
viable partisan political issues. But the plain fact remains that, under legal contemplation, these
issuances are valid on their face, and should result in no constitutional or statutory breaches if
applied according to their letter.

I vote to DISMISS all the petitions.

DANTE O. TINGA
Associate Justice

Footnotes
1
 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.
2
 R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.
3
 "When a statute is reasonably susceptible of two constructions, one constitutional and
the other unconstitutional, that construction in favor of its constitutionality shall be
adopted and the construction that will render it invalid rejected." See R. Agpalo, id., at
266; citing Mutuc v. COMELEC, G.R. No. 32717, Nov. 26, 1970, 36 SCRA 228; J.M.
Tuason & Co., Inc. v. Land Tenure Adm., G.R. No. 21064, Feb. 18, 1970, 31 SCRA 413;
American Bible Society v. City of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100
Phil. 683 (1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Exploration, Inc. v.
Department of Agriculture and Natural Resources, G.R. No. 29534, Fe. 28, 1977, 75
SCRA 285 (1977); De la Cruz v. Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
4
 See Constitution, Section 17, Article VII.
5
 See Constitution, Section 18, Article VII.
6
 See Constitution, Section 1, Article VII.
7
 The plenary legislative power being vested in Congress. See Constitution, Section 1,
Article VI.
8
 "[The President] shall ensure that the laws be faithfully executed." See Constitution,
Section 17, Article VII.
9
 Supra note 4.
10
 "No officer or employee of the civil service shall be removed or suspended except for
cause provided by law." See Constitution, Section 2(3), Article IX-B.
11
 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760,
763.
12
 See Administrative Code, Section 4, Chapter 2, Book III.
13
 See Section 18, Article VII, Constitution.
14
 392 Phil. 618 (2000)
15
 Id. at 627.
16
 Id. at 644.
17
 Id. at 636.
18
 Id. at 643.
19
 Id.
20
 Sanlakas v. Executive Secretary, supra note 1, at 668.
21
 Id. at 677.
22
 Supra note 8.
23
 The declaration of martial law then within the President to make under authority of
Section 10(2), Article VII of the 1935 Constitution.
24
 No. L-35546, 17 September 1974, 59 SCRA 183.
25
 Aquino, Jr. v. Enrile, id. at 240-241.
26
 Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.
27
 Id. at 398-399, Barredo, J., concurring.
28
 Id. at 405-406, Barredo, J., concurring.
29
 Id. at 423, Barredo, J., concurring.
30
 Constitution, Section 18, Article VII.
31
 Constitution, Section 18, Article VII.
32
 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.
33
 See R. Agpalo, Statutory Construction, p. 206.
34
 343 U.S. 579, 653-654, J. Jackson, concurring.
35
 Ibid.
36
 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., at 119-
120.
37
 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 2003 ed., at 1183.
38
 See Section 1, Article III, Constitution.
39
 84 Phil. 368 (1949).
40
 Id. at 379.
41
 Decision, infra.
42
 Id.
43
 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
44
 Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan, dissenting, at
pp. 382-384.
45
 Id., at 398-401.
46
 269 U.S. 385, 393 (1926).
47
 306 U.S. 451 (1939).
48
 378 U.S. 347 (1964).
49
 405 U.S. 156 (1972).
50
 461 U.S. 352 (1983).
51
 Case No. 97-1121, 10 June 1999.
52
 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme Court
invalidated a portion of the Subversive Control Activities Act on the ground of
overbreadth as it sought to proscribe the exercise the right of free association, also within
the First Amendment of the United States Constitution but a distinct right altogether from
free expression.
53
 To name a few, the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents (1973); International
Convention for the Suppression of Terrorist Bombings (1997); International Convention
for the Suppression of the Financing of Terrorism (1999); the International Convention
for the Suppression of Acts of Nuclear Terrorism (2005). See "United Nations Treaty
Collection – Conventions on Terrorism", http://untreaty.un.org/English/Terrorism.asp
(last visited, 30 April 2006).
54
 See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assembly on
17 February 1995.
55
 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J.  Tinga, dissenting.
56
 Id. at 345.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 167614               March 24, 2009

ANTONIO M. SERRANO, Petitioner, 
vs.
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO.,
INC., Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and communities out of
poverty. Their earnings have built houses, provided health care, equipped schools and planted the
seeds of businesses. They have woven together the world by transmitting ideas and knowledge
from country to country. They have provided the dynamic human link between cultures, societies
and economies. Yet, only recently have we begun to understand not only how much international
migration impacts development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon

Global Forum on Migration and Development
Brussels, July 10, 20071

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of
Section 10, Republic Act (R.A.) No. 8042,2 to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.

x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national
development, but exacerbates the hardships borne by them by unduly limiting their entitlement in
case of illegal dismissal to their lump-sum salary either for the unexpired portion of their
employment contract "or for three months for every year of the unexpired term, whichever is
less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional
rights in that it impairs the terms of their contract, deprives them of equal protection and denies
them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the
December 8, 2004 Decision3 and April 1, 2005 Resolution4 of the Court of Appeals (CA), which
applied the subject clause, entreating this Court to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd.
(respondents) under a Philippine Overseas Employment Administration (POEA)-approved
Contract of Employment with the following terms and conditions:

Duration of contract 12 months

Position Chief Officer
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month5

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded
employment contract for the position of Second Officer with a monthly salary of US$1,000.00,
upon the assurance and representation of respondents that he would be made Chief Officer by the
end of April 1998.6

Respondents did not deliver on their promise to make petitioner Chief Officer. 7 Hence, petitioner
refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998.8

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to
March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2)
months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and
twenty-three (23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint9 against respondents for constructive
dismissal and for payment of his money claims in the total amount of US$26,442.73, broken
down as follows:

May US$ 413.90

27/31,
1998 (5
days)
incl.
Leave
pay
June 2,590.00
01/30,
1998
July 2,590.00
01/31,
1998
August 2,590.00
01/31,
1998
Sept. 2,590.00
01/30,
1998
Oct. 2,590.00
01/31,
1998
Nov. 2,590.00
01/30,
1998
Dec. 2,590.00
01/31,
1998
Jan. 2,590.00
01/31,
1999
Feb. 2,590.00
01/28,
1999
Mar. 1,640.00
1/19,
1999
(19
days)
incl.
leave
pay
  --------------------------------------------------------------------------------
  25,382.23
Amount  
adjusted
to chief
mate's
salary
(March 1,060.5010
19/31,
1998 to
April
1/30,
1998) +
  ---------------------------------------------------------------------------------------------
-
TOTAL US$ 26,442.7311
CLAIM

as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner
illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the

dismissal of the complainant (petitioner) by the respondents in the above-entitled case
was illegal and the respondents are hereby ordered to pay the complainant [petitioner],
jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at
the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED
SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainant’s salary for
three (3) months of the unexpired portion of the aforesaid contract of
employment.1avvphi1

The respondents are likewise ordered to pay the complainant [petitioner], jointly and
severally, in Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),12 representing the
complainant’s claim for a salary differential. In addition, the respondents are hereby
ordered to pay the complainant, jointly and severally, in Philippine Currency, at the
exchange rate prevailing at the time of payment, the complainant’s (petitioner's) claim for
attorney’s fees equivalent to ten percent (10%) of the total amount awarded to the
aforesaid employee under this Decision.

The claims of the complainant for moral and exemplary damages are hereby
DISMISSED for lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.13 (Emphasis supplied)
 In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation
on the salary period of three months only -- rather than the entire unexpired portion of
nine months and 23 days of petitioner's employment contract - applying the subject
clause. However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's
"[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, +
US$490.00/month, vacation leave pay = US$2,590.00/compensation per month."14

Respondents appealed15 to the National Labor Relations Commission (NLRC) to question

the finding of the LA that petitioner was illegally dismissed.

Petitioner also appealed16 to the NLRC on the sole issue that the LA erred in not applying
the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations
Commission17 that in case of illegal dismissal, OFWs are entitled to their salaries for the
unexpired portion of their contracts.18

In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby
ordered to pay complainant, jointly and severally, in Philippine currency, at the
prevailing rate of exchange at the time of payment the following:

1. Three (3) months salary

$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney’s fees 424.50
TOTAL US$4,669.50

The other findings are affirmed.

SO ORDERED.19

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by
reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042
"does not provide for the award of overtime pay, which should be proven to have been actually
performed, and for vacation leave pay."20

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the subject clause.21 The NLRC denied the motion.22

Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional challenge
against the subject clause.24 After initially dismissing the petition on a technicality, the CA
eventually gave due course to it, as directed by this Court in its Resolution dated August 7, 2003
which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the
applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.25

His Motion for Reconsideration26 having been denied by the CA,27 petitioner brings his cause to
this Court on the following grounds:

The Court of Appeals and the labor tribunals have decided the case in a way not in accord with
applicable decision of the Supreme Court involving similar issue of granting unto the migrant
worker back wages equal to the unexpired portion of his contract of employment instead of
limiting it to three (3) months

II

In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their
interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals
gravely erred in law when it failed to discharge its judicial duty to decide questions of substance
not theretofore determined by the Honorable Supreme Court, particularly, the constitutional
issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly
and arbitrarily limits payment of the award for back wages of overseas workers to three (3)
months.

III

Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042,
the Court of Appeals gravely erred in law in excluding from petitioner’s award the overtime pay
and vacation pay provided in his contract since under the contract they form part of his salary.28

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old
and sickly, and he intends to make use of the monetary award for his medical treatment and
medication.29 Required to comment, counsel for petitioner filed a motion, urging the court to
allow partial execution of the undisputed monetary award and, at the same time, praying that the
constitutional question be resolved.30

Considering that the parties have filed their respective memoranda, the Court now takes up the
full merit of the petition mindful of the extreme importance of the constitutional question raised
therein.

On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is
not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner
in all three fora. What remains disputed is only the computation of the lump-sum salary to be
awarded to petitioner by reason of his illegal dismissal.

Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner
at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired
portion of nine months and 23 days of his employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the
US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total
of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his
employment contract, computed at the monthly rate of US$2,590.00.31

The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly impairs the
freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a
determinate employment period and a fixed salary package.32 It also impinges on the equal
protection clause, for it treats OFWs differently from local Filipino workers (local workers) by
putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal
dismissal, while setting no limit to the same monetary award for local workers when their
dismissal is declared illegal; that the disparate treatment is not reasonable as there is no
substantial distinction between the two groups;33 and that it defeats Section 18,34 Article II of the
Constitution which guarantees the protection of the rights and welfare of all Filipino workers,
whether deployed locally or overseas.35

Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line
with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though
there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance
of affected OFWs.36

Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves
no other purpose but to benefit local placement agencies. He marks the statement made by the
Solicitor General in his Memorandum, viz.:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims
in the event that jurisdiction over the foreign employer is not acquired by the court or if the
foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and
which fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful contribution in deploying
Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No.
8042. 37(Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause
sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better
off than local employers because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months of the unexpired
employment contract while local employers are liable for the full lump-sum salaries of their
employees. As petitioner puts it:

In terms of practical application, the local employers are not limited to the amount of backwages
they have to give their employees they have illegally dismissed, following well-entrenched and
unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be
limited to giving the illegally dismissed migrant workers the maximum of three (3) months
unpaid salaries notwithstanding the unexpired term of the contract that can be more than three
(3) months.38

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives
him of the salaries and other emoluments he is entitled to under his fixed-period employment
contract.39

The Arguments of Respondents

In their Comment and Memorandum, respondents contend that the constitutional issue should
not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA,
and not at the earliest opportunity, which was when he filed an appeal before the NLRC.40

The Arguments of the Solicitor General

The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect on July 15, 1995, its
provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No.
8042 having preceded petitioner's contract, the provisions thereof are deemed part of the
minimum terms of petitioner's employment, especially on the matter of money claims, as this
was not stipulated upon by the parties.42

Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of
their employment, such that their rights to monetary benefits must necessarily be treated
differently. The OSG enumerates the essential elements that distinguish OFWs from local
workers: first, while local workers perform their jobs within Philippine territory, OFWs perform
their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or
against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v.
National Labor Relations Commission43 and Millares v. National Labor Relations
Commission,44 OFWs are contractual employees who can never acquire regular employment
status, unlike local workers who are or can become regular employees. Hence, the OSG posits
that there are rights and privileges exclusive to local workers, but not available to OFWs; that
these peculiarities make for a reasonable and valid basis for the differentiated treatment under the
subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision
does not violate the equal protection clause nor Section 18, Article II of the Constitution.45

Lastly, the OSG defends the rationale behind the subject clause as a police power measure
adopted to mitigate the solidary liability of placement agencies for this "redounds to the benefit
of the migrant workers whose welfare the government seeks to promote. The survival of
legitimate placement agencies helps [assure] the government that migrant workers are properly
deployed and are employed under decent and humane conditions."46

The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the acts of its co-equals,
such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case
or controversy involving a conflict of rights susceptible of judicial determination; 47 (2) that the
constitutional question is raised by a proper party48 and at the earliest opportunity;49 and (3) that
the constitutional question is the very lis mota of the case,50otherwise the Court will dismiss the
case or decide the same on some other ground.51

Without a doubt, there exists in this case an actual controversy directly involving petitioner who
is personally aggrieved that the labor tribunals and the CA computed his monetary award based
on the salary period of three months only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that the requirement that a
constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the
pleadings before a competent court, such that, if the issue is not raised in the pleadings before
that competent court, it cannot be considered at the trial and, if not considered in the trial, it
cannot be considered on appeal.52 Records disclose that the issue on the constitutionality of the
subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for
Partial Reconsideration with said labor tribunal,53 and reiterated in his Petition
for Certiorari before the CA.54 Nonetheless, the issue is deemed seasonably raised because it is
not the NLRC but the CA which has the competence to resolve the constitutional issue. The
NLRC is a labor tribunal that merely performs a quasi-judicial function – its function in the
present case is limited to determining questions of fact to which the legislative policy of R.A.
No. 8042 is to be applied and to resolving such questions in accordance with the standards laid
down by the law itself;55 thus, its foremost function is to administer and enforce R.A. No. 8042,
and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the
power of judicial review or the power to declare unconstitutional a law or a provision thereof,
such as the subject clause.56Petitioner's interposition of the constitutional issue before the CA
was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its
decision.

The third condition that the constitutional issue be critical to the resolution of the case likewise
obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired
portion of his 12-month employment contract, and not just for a period of three months, strikes at
the very core of the subject clause.

Thus, the stage is all set for the determination of the constitutionality of the subject clause.
Does the subject clause violate Section 10,
Article III of the Constitution on non-impairment
of contracts?

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on
the term of his employment and the fixed salary package he will receive57 is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a
prospective operation,58and cannot affect acts or contracts already perfected;59 however, as to
laws already in existence, their provisions are read into contracts and deemed a part
thereof.60 Thus, the non-impairment clause under Section 10, Article II is limited in application
to laws about to be enacted that would in any way derogate from existing acts or contracts by
enlarging, abridging or in any manner changing the intention of the parties thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution
of the employment contract between petitioner and respondents in 1998. Hence, it cannot be
argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of
the parties. Rather, when the parties executed their 1998 employment contract, they were deemed
to have incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not be declared
unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted
in the exercise of the police power of the State to regulate a business, profession or calling,
particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring
respect for the dignity and well-being of OFWs wherever they may be employed. 61 Police power
legislations adopted by the State to promote the health, morals, peace, education, good order,
safety, and general welfare of the people are generally applicable not only to future contracts but
even to those already in existence, for all private contracts must yield to the superior and
legitimate measures taken by the State to promote public welfare.62

Does the subject clause violate Section 1,

Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

No person shall be deprived of life, liberty, or property without due process of law nor shall any
person be denied the equal protection of the law.

Section 18,63 Article II and Section 3,64 Article XIII accord all members of the labor sector,
without distinction as to place of deployment, full protection of their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate
to economic security and parity: all monetary benefits should be equally enjoyed by workers of
similar category, while all monetary obligations should be borne by them in equal degree; none
should be denied the protection of the laws which is enjoyed by, or spared the burden imposed
on, others in like circumstances.65

Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it
sees fit, a system of classification into its legislation; however, to be valid, the classification must
comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the
purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all
members of the class.66

There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be rationally related to serving a legitimate state
interest;67 b) the middle-tier or intermediate scrutiny in which the government must show that the
challenged classification serves an important state interest and that the classification is at least
substantially related to serving that interest;68 and c) strict judicial scrutiny69 in which a
legislative classification which impermissibly interferes with the exercise of a fundamental
right70 or operates to the peculiar disadvantage of a suspect class71 is presumed unconstitutional,
and the burden is upon the government to prove that the classification is necessary to achieve
a compelling state interest and that it is the least restrictive means to protect such interest.72

Under American jurisprudence, strict judicial scrutiny is triggered by suspect

classifications73 based on race74 or gender75 but not when the classification is drawn along income
categories.76

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas)
Employee Association, Inc. v. Bangko Sentral ng Pilipinas,77 the constitutionality of a provision
in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI),
was challenged for maintaining its rank-and-file employees under the Salary Standardization
Law (SSL), even when the rank-and-file employees of other GFIs had been exempted from the
SSL by their respective charters. Finding that the disputed provision contained a suspect
classification based on salary grade, the Court deliberately employed the standard of strict
judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was
in this case that the Court revealed the broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification, and its policies should
be accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right,
or prejudices persons accorded special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations. Rational basis should
not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution
requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se controlling in this
jurisdiction. At best, they are persuasive and have been used to support many of our decisions.
We should not place undue and fawning reliance upon them and regard them as indispensable
mental crutches without which we cannot come to our own decisions through the employment of
our own endowments. We live in a different ambience and must decide our own problems in the
light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and
always with our own concept of law and justice. Our laws must be construed in accordance with
the intention of our own lawmakers and such intent may be deduced from the language of each
law and the context of other local legislation related thereto. More importantly, they must be
construed to serve our own public interest which is the be-all and the end-all of all our laws. And
it need not be stressed that our public interest is distinct and different from others.

xxxx

Further, the quest for a better and more "equal" world calls for the use of equal protection as a
tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The
Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in
Philippine society. The command to promote social justice in Article II, Section 10, in "all
phases of national development," further explicitated in Article XIII, are clear commands to the
State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the
Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards
achieving a reasonable measure of equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to
marginalized groups of society, including labor. Under the policy of social justice, the law bends
over backward to accommodate the interests of the working class on the humane justification
that those with less privilege in life should have more in law. And the obligation to afford
protection to labor is incumbent not only on the legislative and executive branches but also on
the judiciary to translate this pledge into a living reality. Social justice calls for the humanization
of laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the
perpetuation of prejudice against persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A weak and watered down view would
call for the abdication of this Court’s solemn duty to strike down any law repugnant to the
Constitution and the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the character or nature of the actor.

xxxx

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-
employee status. It is akin to a distinction based on economic class and status, with the higher
grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP
now receive higher compensation packages that are competitive with the industry, while the
poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications
are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the
SSL while employees higher in rank - possessing higher and better education and opportunities
for career advancement - are given higher compensation packages to entice them to stay.
Considering that majority, if not all, the rank-and-file employees consist of people whose status
and rank in life are less and limited, especially in terms of job marketability, it is they - and not
the officers - who have the real economic and financial need for the adjustment . This is in
accord with the policy of the Constitution "to free the people from poverty, provide adequate
social services, extend to them a decent standard of living, and improve the quality of life for
all." Any act of Congress that runs counter to this constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster. (Emphasis supplied)

Imbued with the same sense of "obligation to afford protection to labor," the Court in the present
case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a
suspect classification prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs.
However, a closer examination reveals that the subject clause has a discriminatory intent against,
and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with
employment contracts of one year or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis-à-vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis-à-vis OFWs with employment
contracts of one year or more
As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v. National Labor
Relations Commission79 (Second Division, 1999) that the Court laid down the following rules on
the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an
illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired
portion of his employment contract or three (3) months’ salary for every year of the unexpired
term, whichever is less, comes into play only when the employment contract concerned has a
term of at least one (1) year or more. This is evident from the words "for every year of the
unexpired term" which follows the words "salaries x x x for three months."To follow
petitioners’ thinking that private respondent is entitled to three (3) months salary only simply
because it is the lesser amount is to completely disregard and overlook some words used in the
statute while giving effect to some. This is contrary to the well-established rule in legal
hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be
given effect since the law-making body is presumed to know the meaning of the words employed
in the statue and to have used them advisedly. Ut res magis valeat quam pereat. 80 (Emphasis
supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract,
but was awarded his salaries for the remaining 8 months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings
on Section 10(5). One was Asian Center for Career and Employment System and Services v.
National Labor Relations Commission (Second Division, October 1998),81 which involved an
OFW who was awarded a two-year employment contract,but was dismissed after working for
one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00
as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the
Court reduced the award to SR3,600.00 equivalent to his three months’ salary, this being the
lesser value, to wit:

Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just,
valid or authorized cause is entitled to his salary for the unexpired portion of his employment
contract or for three (3) months for every year of the unexpired term, whichever is less.

In the case at bar, the unexpired portion of private respondent’s employment contract is eight (8)
months. Private respondent should therefore be paid his basic salary corresponding to three (3)
months or a total of SR3,600.82

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations

Commission (Third Division, December 1998),83 which involved an OFW (therein respondent
Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed
for another 12 months. After serving for one year and seven-and-a-half months, respondent
Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired
portion of four and one-half months of her contract.

The Marsaman interpretation of Section 10(5) has since been adopted in the following cases:
Case Title Contract Period of Unexpired Period Applied in
Period Service Period the Computation
of the Monetary
Award
Skippers v. 6 months 2 months 4 months 4 months
Maguad84
Bahia Shipping 9 months 8 months 4 months 4 months
v. Reynaldo
85
Chua 
Centennial 9 months 4 months 5 months 5 months
Transmarine v.
dela Cruz l86
Talidano v. 12 months 3 months 9 months 3 months
Falcon87
Univan v. 12 months 3 months 9 months 3 months
CA 88
Oriental v. 12 months more than 2 10 months 3 months
CA 89 months
PCL v. 12 months more than 2 more or less 9 3 months
NLRC90 months months
Olarte v. 12 months 21 days 11 months and 9 3 months
Nayona91 days
JSS v.Ferrer92 12 months 16 days 11 months and 3 months
24 days
Pentagon v. 12 months 9 months and 2 months and 23 2 months and 23
93
Adelantar 7 days days days
Phil. Employ 12 months 10 months 2 months Unexpired portion
v. Paramio, et
al.94
Flourish 2 years 26 days 23 months and 4 6 months or 3
Maritime v. days months for each
Almanzor 95 year of contract
Athenna 1 year, 10 1 month 1 year, 9 months 6 months or 3
Manpower v. months and and 28 days months for each
Villanos 96 28 days year of contract
As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories.
The first category includes OFWs with fixed-period employment contracts of less than one year;
in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of
their contract. The second category consists of OFWs with fixed-period employment contracts of
one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to
only 3 months of the unexpired portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In Skippers, the
respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his
salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who
had also worked for about 2 months out of their 12-month contracts were awarded their salaries
for only 3 months of the unexpired portion of their contracts. Even the OFWs involved
in Talidano and Univan who had worked for a longer period of 3 months out of their 12-month
contracts before being illegally dismissed were awarded their salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an
employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical
OFW-B with an employment contract of 15 months with the same monthly salary rate of
US$1,000.00. Both commenced work on the same day and under the same employer, and were
illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to
US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas
OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the
unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14
months of his contract, as the US$3,000.00 is the lesser amount.

The disparity becomes more aggravating when the Court takes into account jurisprudence
that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,97 illegally dismissed OFWs, no
matter how long the period of their employment contracts, were entitled to their salaries for the
entire unexpired portions of their contracts. The matrix below speaks for itself:

Case Title Contract Period of Unexpired Period Applied in

Period Service Period the Computation of
the Monetary Award
ATCI v. CA, et 2 years 2 months 22 months 22 months
al.98
Phil. Integrated 2 years 7 days 23 months 23 months and 23
v. NLRC99 and 23 days days
JGB v. NLC100 2 years 9 months 15 months 15 months
Agoy v. 2 years 2 months 22 months 22 months
NLRC101
EDI v. NLRC, 2 years 5 months 19 months 19 months
et al.102
 Barros v. 12 months 4 months 8 months 8 months
NLRC, et al.103
Philippine 12 months 6 months 5 months and 5 months and 18 days
Transmarine v. and 22 days 18 days
Carilla104

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired
portions thereof, were treated alike in terms of the computation of their monetary benefits in
case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their
basic salaries multiplied by the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of
computation of the money claims of illegally dismissed OFWs based on their employment
periods, in the process singling out one category whose contracts have an unexpired portion of
one year or more and subjecting them to the peculiar disadvantage of having their monetary
awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is
less, but all the while sparing the other category from such prejudice, simply because the latter's
unexpired contracts fall short of one year.

Among OFWs With Employment Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the Court now has
misgivings on the accuracy of the Marsaman interpretation.

The Court notes that the subject clause "or for three (3) months for every year of the unexpired
term, whichever is less" contains the qualifying phrases "every year" and "unexpired term." By
its ordinary meaning, the word "term" means a limited or definite extent of time. 105 Corollarily,
that "every year" is but part of an "unexpired term" is significant in many ways: first, the
unexpired term must be at least one year, for if it were any shorter, there would be no occasion
for such unexpired term to be measured by every year; and second, the original term must be
more than one year, for otherwise, whatever would be the unexpired term thereof will not reach
even a year. Consequently, the more decisive factor in the determination of when the subject
clause "for three (3) months for every year of the unexpired term, whichever is less" shall apply
is not the length of the original contract period as held in Marsaman,106 but the length of the
unexpired portion of the contract period -- the subject clause applies in cases when the unexpired
portion of the contract period is at least one year, which arithmetically requires that the original
contract period be more than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose
contract periods are for more than one year: those who are illegally dismissed with less than one
year left in their contracts shall be entitled to their salaries for the entire unexpired portion
thereof, while those who are illegally dismissed with one year or more remaining in their
contracts shall be covered by the subject clause, and their monetary benefits limited to their
salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the subject clause, the
Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary
rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D,
on the 13th month. Considering that there is at least 12 months remaining in the contract period
of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus,
OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months
unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries
for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is
spared from the effects of the subject clause, for there are only 11 months left in the latter's
contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her
total salaries for the entire 11-month unexpired portion.

OFWs vis-à-vis Local Workers
With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary
awards of illegally dismissed OFWs was in place. This uniform system was applicable even to
local workers with fixed-term employment.107

The earliest rule prescribing a uniform system of computation was actually Article 299 of the
Code of Commerce (1888),108 to wit:

Article 299. If the contracts between the merchants and their shop clerks and employees should
have been made of a fixed period, none of the contracting parties, without the consent of the
other, may withdraw from the fulfillment of said contract until the termination of the period
agreed upon.

Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the
exception of the provisions contained in the following articles.

In Reyes v. The Compañia Maritima,109 the Court applied the foregoing provision to determine
the liability of a shipping company for the illegal discharge of its managers prior to the
expiration of their fixed-term employment. The Court therein held the shipping company liable
for the salaries of its managers for the remainder of their fixed-term employment.

There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of
Commerce which provides:

Article 605. If the contracts of the captain and members of the crew with the agent should be for
a definite period or voyage, they cannot be discharged until the fulfillment of their contracts,
except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness,
and damage caused to the vessel or to its cargo by malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110 in

which the Court held the shipping company liable for the salaries and subsistence allowance of
its illegally dismissed employees for the entire unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present,111 Article 299 of the Code of
Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit:

Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for
a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the
contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in Article 1586 as a
conjunctive "and" so as to apply the provision to local workers who are employed for a time
certain although for no particular skill. This interpretation of Article 1586 was reiterated in
Garcia Palomar v. Hotel de France Company.113 And in both Lemoine and Palomar, the Court
adopted the general principle that in actions for wrongful discharge founded on Article 1586,
local workers are entitled to recover damages to the extent of the amount stipulated to be paid to
them by the terms of their contract. On the computation of the amount of such damages, the
Court in Aldaz v. Gay114 held:

The doctrine is well-established in American jurisprudence, and nothing has been brought to our
attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully
discharged it is his duty to seek other employment of the same kind in the same community, for
the purpose of reducing the damages resulting from such wrongful discharge. However, while
this is the general rule, the burden of showing that he failed to make an effort to secure other
employment of a like nature, and that other employment of a like nature was obtainable, is upon
the defendant. When an employee is wrongfully discharged under a contract of employment his
prima facie damage is the amount which he would be entitled to had he continued in such
employment until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs.
Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)115 (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term
employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract
of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV. 116 Much like
Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly
provide for the remedies available to a fixed-term worker who is illegally discharged. However,
it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,117 the Court carried over the
principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and
applied the same to a case involving the illegal discharge of a local worker whose fixed-period
employment contract was entered into in 1952, when the new Civil Code was already in effect.118

More significantly, the same principles were applied to cases involving overseas Filipino
workers whose fixed-term employment contracts were illegally terminated, such as in First Asian
Trans & Shipping Agency, Inc. v. Ople,119involving seafarers who were illegally discharged. In
Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,120 an OFW
who was illegally dismissed prior to the expiration of her fixed-period employment contract as a
baby sitter, was awarded salaries corresponding to the unexpired portion of her contract. The
Court arrived at the same ruling in Anderson v. National Labor Relations Commission,121 which
involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was
illegally dismissed after only nine months on the job -- the Court awarded him salaries
corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment,
Inc. v. National Labor Relations Commission,122 a Filipino working as a security officer in 1989
in Angola was awarded his salaries for the remaining period of his 12-month contract after he
was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations
Commission,123 an OFW whose 12-month contract was illegally cut short in the second month
was declared entitled to his salaries for the remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were
illegally discharged were treated alike in terms of the computation of their money claims: they
were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But
with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally
dismissed OFWs with an unexpired portion of one year or more in their employment contract
have since been differently treated in that their money claims are subject to a 3-month cap,
whereas no such limitation is imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification in that, in the
computation of the monetary benefits of fixed-term employees who are illegally discharged, it
imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more
in their contracts, but none on the claims of other OFWs or local workers with fixed-term
employment. The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution,
the Court now subjects the classification to a strict judicial scrutiny, and determines whether it
serves a compelling state interest through the least restrictive means.

What constitutes compelling state interest is measured by the scale of rights and powers arrayed
in the Constitution and calibrated by history.124 It is akin to the paramount interest of the
state125 for which some individual liberties must give way, such as the public interest in
safeguarding health or maintaining medical standards,126 or in maintaining access to information
on matters of public concern.127

In the present case, the Court dug deep into the records but found no compelling state interest
that the subject clause may possibly serve.

The OSG defends the subject clause as a police power measure "designed to protect the
employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic],
Filipino seafarers have better chance of getting hired by foreign employers." The limitation also
protects the interest of local placement agencies, which otherwise may be made to shoulder
millions of pesos in "termination pay."128

The OSG explained further:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims
in the event that jurisdiction over the foreign employer is not acquired by the court or if the
foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and
which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer.
To protect them and to promote their continued helpful contribution in deploying Filipino
migrant workers, liability for money are reduced under Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose welfare the government
seeks to promote. The survival of legitimate placement agencies helps [assure] the government
that migrant workers are properly deployed and are employed under decent and humane
conditions.129 (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its
perception of the state interest sought to be served by the subject clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in
sponsorship of House Bill No. 14314 (HB 14314), from which the law originated; 130 but the
speech makes no reference to the underlying reason for the adoption of the subject clause. That is
only natural for none of the 29 provisions in HB 14314 resembles the subject clause.

On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor
Arbiters of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the
complaint, the claims arising out of an employer-employee relationship or by virtue of the
complaint, the claim arising out of an employer-employee relationship or by virtue of any law or
contract involving Filipino workers for overseas employment including claims for actual, moral,
exemplary and other forms of damages.

The liability of the principal and the recruitment/placement agency or any and all claims under
this Section shall be joint and several.

Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of

damages under this Section shall not be less than fifty percent (50%) of such money
claims: Provided, That any installment payments, if applicable, to satisfy any such compromise
or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary
agreement in violation of this paragraph shall be null and void.

Non-compliance with the mandatory period for resolutions of cases provided under this Section
shall subject the responsible officials to any or all of the following penalties:

(1) The salary of any such official who fails to render his decision or resolution within the
prescribed period shall be, or caused to be, withheld until the said official complies
therewith;
 (2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to hold any appointive public office
for five (5) years.

Provided, however, That the penalties herein provided shall be without prejudice to any liability
which any such official may have incurred under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of
money claims.

A rule on the computation of money claims containing the subject clause was inserted and
eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the
rationale of the subject clause in the transcripts of the "Bicameral Conference Committee
(Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of
Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state
interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of
the subject clause.

In fine, the Government has failed to discharge its burden of proving the existence of a
compelling state interest that would justify the perpetuation of the discrimination against OFWs
under the subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the
employment of OFWs by mitigating the solidary liability of placement agencies, such callous
and cavalier rationale will have to be rejected. There can never be a justification for any form of
government action that alleviates the burden of one sector, but imposes the same burden on
another sector, especially when the favored sector is composed of private businesses such as
placement agencies, while the disadvantaged sector is composed of OFWs whose protection no
less than the Constitution commands. The idea that private business interest can be elevated to
the level of a compelling state interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement
agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be
employed to achieve that purpose without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based
Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on
erring foreign employers who default on their contractual obligations to migrant workers and/or
their Philippine agents. These disciplinary measures range from temporary disqualification to
preventive suspension. The POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary
measures against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive means of aiding local
placement agencies in enforcing the solidary liability of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the
right of petitioner and other OFWs to equal protection.1avvphi1

Further, there would be certain misgivings if one is to approach the declaration of the
unconstitutionality of the subject clause from the lone perspective that the clause directly violates
state policy on labor under Section 3,131Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,132 there are some
which this Court has declared not judicially enforceable, Article XIII being one,133 particularly
Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations
Commission,134 has described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as
self-executing in the sense that these are automatically acknowledged and observed without need
for any enabling legislation. However, to declare that the constitutional provisions are enough to
guarantee the full exercise of the rights embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The espousal of such view presents the
dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially unqualified, and the
broadest interpretation possible suggests a blanket shield in favor of labor against any form of
removal regardless of circumstance. This interpretation implies an unimpeachable right to
continued employment-a utopian notion, doubtless-but still hardly within the contemplation of
the framers. Subsequent legislation is still needed to define the parameters of these guaranteed
rights to ensure the protection and promotion, not only the rights of the labor sector, but of the
employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss,
formulating their own conclusion to approximate at least the aims of the Constitution.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive
enforceable right to stave off the dismissal of an employee for just cause owing to the failure to
serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for their enforceability.135 (Emphasis
added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights,
for the violation of which the questioned clause may be declared unconstitutional. It may
unwittingly risk opening the floodgates of litigation to every worker or union over every
conceivable violation of so broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the working class any
actual enforceable right, but merely clothes it with the status of a sector for whom the
Constitution urges protection through executive or legislative action and judicial recognition. Its
utility is best limited to being an impetus not just for the executive and legislative departments,
but for the judiciary as well, to protect the welfare of the working class.  And it was in fact
consistent with that constitutional agenda that the Court in Central Bank (now Bangko Sentral ng
Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate
Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the
challenge to a statute is premised on the perpetuation of prejudice against persons favored by the
Constitution with special protection -- such as the working class or a section thereof -- the Court
may recognize the existence of a suspect classification and subject the same to strict judicial
scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny formulated
in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a
groundless apprehension. Central Bank applied Article XIII in conjunction with the equal
protection clause. Article XIII, by itself, without the application of the equal protection clause,
has no life or force of its own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause violates
petitioner's right to substantive due process, for it deprives him of property, consisting of
monetary benefits, without any existing valid governmental purpose.136

The argument of the Solicitor General, that the actual purpose of the subject clause of limiting
the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a
better chance of getting hired by foreign employers. This is plain speculation. As earlier
discussed, there is nothing in the text of the law or the records of the deliberations leading to its
enactment or the pleadings of respondent that would indicate that there is an existing
governmental purpose for the subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose; and it is for that
precise reason that the clause violates not just petitioner's right to equal protection, but also her
right to substantive due process under Section 1,137 Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire
unexpired period of nine months and 23 days of his employment contract, pursuant to law and
jurisprudence prior to the enactment of R.A. No. 8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the salary basis in the
computation of his monetary award, because these are fixed benefits that have been stipulated
into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like
petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment
Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime,
leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in
excess of the regular eight hours, and holiday pay is compensation for any work "performed" on
designated rest days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and
holiday pay in the computation of petitioner's monetary award, unless there is evidence that he
performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138

However, the payment of overtime pay and leave pay should be disallowed in light of our ruling
in Cagampan v. National Labor Relations Commission, to wit:

The rendition of overtime work and the submission of sufficient proof that said was actually
performed are conditions to be satisfied before a seaman could be entitled to overtime pay which
should be computed on the basis of 30% of the basic monthly salary. In short, the contract
provision guarantees the right to overtime pay but the entitlement to such benefit must first be
established.

In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is
unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for
every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of
Republic Act No. 8042 is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004
Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that
petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract
consisting of nine months and 23 days computed at the rate of US$1,400.00 per month.

No costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
 CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

(On leave)
PRESBITERO J. VELASCO, JR.
MINITA V. CHICO-NAZARIO
Associate Justice
Associate Justice

ANTONIO EDUARDO B. TERESITA J. LEONARDO-DE

NACHURA CASTRO
Associate Justice Associate Justice

(see concurring opinion)

DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
1
 http://www.un.org/News/Press/docs/2007/sgsm11084.doc.htm.
2
 Migrant Workers and Overseas Filipinos Act of 1995, effective July 15, 1995.
3
 Penned by Associate Justice Andres B. Reyes, Jr. and concurred in by Associate
Justices Lucas P. Bersamin and Celia C. Librea-Leagogo; rollo, p. 231.
4
 Id. at 248.
5
 Rollo, p. 57.
6
 Id. at 58.
7
 Id. at 59.
8
 Id. at 48.
9
 Id. at 55.
10
 According to petitioner, this amount represents the pro-rated difference between the
salary of US$2,590.00 per month which he was supposed to receive as Chief Officer
from March 19, 1998 to April 30, 1998 and the salary of US$1,850.00 per month which
he was actually paid as Second Officer for the same period. See LA Decision, rollo, pp.
107 and 112.
11
 Position Paper, id. at 53-54.
12
 The LA awarded petitioner US$45.00 out of the US$1,480.00 salary differential to
which petitioner is entitled in view of his having received from respondents US$1,435.00
as evidenced by receipts marked as Annexes "F", "G" and "H", id. at 319-321.
13
 Id. at 114.
14
 Rollo, pp. 111-112.
15
 Id. at 124.
16
 Id. at 115.
17
 G.R. No. 129584, December 3, 1998, 299 SCRA 608.
18
 Appeal Memorandum, rollo, p. 121.
19
 Id. at 134.
20
 NLRC Decision, rollo, p. 140.
21
 Id. at 146-150.
22
 Id. at 153.
23
 Id. at 155.
24
 Id. at 166-177.
25
 CA Decision, id. at 239-241.
26
 Id. at 242.
27
 Id. at 248.
28
 Petition, rollo, p. 28.
29
 Id. at 787.
30
 Id. at 799.
31
 Rollo, p. 282
32
 Memorandum for Petitioner, id. at 741-742.
33
 Id. at 746-753.
34
 Section 18. The State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
35
 Rollo, pp. 763-766.
36
 Petition, id. at 735.
37
 Memorandum of the Solicitor General, rollo, p. 680.
38
 Memorandum for Petitioner, id. at 755.
39
 Id. at 761-763.
40
 Rollo, pp. 645-646 and 512-513.
41
 Alfredo L. Benipayo was Solicitor General at the time the Comment was filed. Antonio
Eduardo B. Nachura (now an Associate Justice of the Supreme Court) was Solicitor
General when the Memorandum was filed.
42
 Memorandum of the Solicitor General, id. at 662-665.
43
 G.R. No. 113658, March 31, 1995, 243 SCRA 190.
44
 G.R. No. 110524, July 29, 2002, 385 SCRA 306.
45
 Memorandum of the Solicitor General, rollo, pp. 668-678.
46
 Id. at 682.
47
 The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel on Ancestral Domain, G.R. No. 183591 October 14, 2008.
48
 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18,
2005, 449 SCRA 1.
49
 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
50
 Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004, 432 SCRA 136.
51
 Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719,
June 21, 2007, 525 SCRA 198; Marasigan v. Marasigan, G.R. No. 156078, March 14,
2008, 548 SCRA 409.
52
 Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49.
53
 Rollo, p. 145.
54
 Id. at 166.
55
 Smart Communications, Inc. v. National Telecommunications Commission, G.R. No.
151908, August 12, 2003, 408 SCRA 678.
56
 Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214,
September 19, 2006, 502 SCRA 295.
57
 Memorandum for Petitioner, rollo, pp. 741-742.
58
 Ortigas & Co., Ltd. v. Court of Appeals, G.R. No. 126102, December 4, 2000, 346
SCRA 748.
59
 Picop Resources, Inc. v. Base Metals Mineral Resources Corporation, G.R. No.
163509, December 6, 2006, 510 SCRA 400.
60
 Walker v. Whitehead, 83 U.S. 314 (1873); Wood v. Lovett, 313 U.S. 362, 370
(1941); Intrata-Assurance Corporation v. Republic of the Philippines, G.R. No. 156571,
July 9, 2008; Smart Communications, Inc. v. City of Davao, G.R. No. 155491,
September 16, 2008.
61
 Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004, 429 SCRA
81, citing JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095,
August 5, 1996, 260 SCRA 319.
62
 Ortigas & Co., Ltd. v. Court of Appeals, supra note 58.
63
 Section 18. The State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
64
 Section 3, The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all.
65
 See City of Manila v. Laguio, G.R. No. 118127, April 12, 2005, 455 SCRA
308; Pimentel III v. Commission on Elections, G.R. No. 178413, March 13, 2008, 548
SCRA 169.
66
 League of Cities of the Philippines v. Commission on Elections G.R. No. 176951,
November 18, 2008; Beltran v. Secretary of Health, G.R. No. 139147,November 25,
2005, 476 SCRA 168.
67
 Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform,
G.R. No. 78742, July 14, 1989, 175 SCRA 343.
68
 Los Angeles v. Almeda Books, Inc., 535 U.S. 425 (2002); Craig v. Boren, 429 US 190
(1976).
69
 There is also the "heightened scrutiny" standard of review which is less demanding
than "strict scrutiny" but more demanding than the standard rational relation test.
Heightened scrutiny has generally been applied to cases that involve discriminatory
classifications based on sex or illegitimacy, such as in Plyler v. Doe, 457 U.S. 202, where
a heightened scrutiny standard was used to invalidate a State's denial to the children of
illegal aliens of the free public education that it made available to other residents.
70
 America v. Dale, 530 U.S. 640 (2000); Parents Involved in Community Schools v.
Seattle School District No. 1, 551 U.S. (2007);
http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf.
71
 Adarand Constructors, Inc. v. Peña, 515 US 230 (1995).
72
 Grutter v. Bollinger, 539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).
73
 The concept of suspect classification first emerged in the famous footnote in the
opinion of Justice Harlan Stone in U.S. v. Carolene Products Co., 304 U.S. 144 (1938),
the full text of which footnote is reproduced below:

There may be narrower scope for operation of the presumption of constitutionality

when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed equally
specific when held to be embraced within the Fourteenth. See Stromberg v.
California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those

political processes which can ordinarily be expected to bring about repeal of
undesirable legislation is to be subjected to more exacting judicial scrutiny under
the general prohibitions of the Fourteenth Amendment than are most other types
of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273
U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of
information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-
 720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra;
on interferences with political organizations, see Stromberg v. California, supra,
369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-
378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New
York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v.
Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of
statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510,
or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404;
Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon,
supra; Nixon v. Condon, supra: whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching judicial
inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v.
Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.
74
 Korematsu v. United States, 323 U.S. 214 (1944); Regents of the University of
California v. Bakke, 438 U.S. 265 (1978).
75
 Frontiero v. Richardson, 411 U.S. 677 (1973); U.S. v. Virginia, 518 U.S. 515 (1996).
76
 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
77
 G.R. No. 148208, December 15, 2004, 446 SCRA 299.
78
 Rollo, pp. 727 and 735.
79
 371 Phil. 827 (1999).
80
 Id. at 840-841.
81
 G.R. No. 131656, October 20, 1998, 297 SCRA 727.
82
 Id.
83
 Supra note 17.
84
 G.R. No. 166363, August 15, 2006, 498 SCRA 639.
85
 G.R. No. 162195, April 8, 2008, 550 SCRA 600.
86
 G.R. No. 180719, August 22, 2008.
87
 G.R. No. 172031, July 14, 2008, 558 SCRA 279.
88
 G.R. No. 157534, June 18, 2003 (Resolution).
89
 G.R. No. 153750, January 25, 2006, 480 SCRA 100.
90
 G.R. No. 148418, July 28, 2005, 464 SCRA 314.
91
 G.R. No. 148407, November 12, 2003, 415 SCRA 720.
92
 G.R. No. 156381, October 14, 2005, 473 SCRA 120.
93
 G.R. No. 157373, July 27, 2004, 435 SCRA 342.
94
 G.R. No. 144786, April 15, 2004, 427 SCRA 732.
95
 G.R. No. 177948, March 14, 2008, 548 SCRA 712.
96
 G.R. No. 151303, April 15, 2005, 456 SCRA 313.
97
 Asian Center v. National Labor Relations Commission, supra note 81.
98
 G.R. No. 143949, August 9, 2001, 362 SCRA 571.
99
 G.R. No. 123354, November 19, 1996, 264 SCRA 418.
100
 G.R. No. 109390, March 7, 1996, 254 SCRA 457.
101
 G.R. No. 112096, January 30, 1996, 252 SCRA 588.
102
 G.R. No. 145587, October 26, 2007, 537 SCRA 409.
103
 G.R. No. 123901, September 22, 1999, 315 SCRA 23.
104
 G.R. No. 157975, June 26, 2007, 525 SCRA 586.
105
 www.merriam-webster.com/dictionary visited on November 22, 2008 at 3:09.
106
 See also Flourish, supra note 95; and Athena, supra note 96.
107
 It is noted that both petitioner and the OSG drew comparisons between OFWs in
general and local workers in general. However, the Court finds that the more relevant
comparison is between OFWs whose employment is necessarily subject to a fixed term
and local workers whose employment is also subject to a fixed term.
108
 Promulgated on August 6, 1888 by Queen Maria Cristina of Spain and extended to the
Philippines by Royal Decree of August 8, 1888. It took effect on December 1, 1888.
109
 No. 1133, March 29, 1904, 3 SCRA 519.
110
 No. L-8431, October 30, 1958, 104 SCRA 748.
111
 See also Wallem Philippines Shipping, Inc. v. Hon. Minister of Labor, No. L-50734-
37, February 20, 1981, 102 scra 835, where Madrigal Shipping Company, Inc. v.
Ogilvie is cited.
112
 No. L-10422, January 11, 1916, 33 SCRA 162.
113
 No. L-15878, January 11, 1922, 42 SCRA 660.
114
 7 Phil. 268 (1907).
115
 See also Knust v. Morse, 41 Phil 184 (1920).
116
 Brent School, Inc. v. Zamora, No. L-48494, February 5, 1990, 181 SCRA 702.
117
 No. L-22608, June 30, 1969, 28 SCRA 699.
118
 The Labor Code itself does not contain a specific provision for local workers with
fixed-term employment contracts. As the Court observed in Brent School, Inc., the
concept of fixed-term employment has slowly faded away from our labor laws, such that
reference to our labor laws is of limited use in determining the monetary benefits to be
awarded to fixed-term workers who are illegally dismissed.
119
 No. L-65545, July 9, 1986., 142 SCRA 542.
120
 G.R. No. 100399, August 4, 1992, 212 SCRA 132.
121
 G.R. No. 111212, January 22, 1996, 252 SCRA 116.
122
 G.R. No. 113363, August 24, 1999, 313 SCRA 1.
123
 G.R. No. 113911, January 23, 1998, 284 SCRA 656.
124
 See Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA 1.
125
 Id.
126
 Roe v. Wade, 410 U.S. 113 (1971); see also Carey v. Population Service International,
431 U.S. 678 (1977).
127
 Sabio v. Gordon, G.R. Nos. 174340, 174318, 174177, October 16, 2006, 504 SCRA
704.
128
 Comment, rollo, p. 555.
129
 Memorandum of the Solicitor General, id. at 682-683
130
 Id. at p. 693.
131
 Section 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a
living wage. They shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.

The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and growth.
132
 Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156,
February 3, 1997, 267 SCRA 408.
133
 Basco v. Philippine Amusement and Gaming Corporation, G.R. No. 91649, May 14,
1991, 197 SCRA 52.
134
 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
135
 Agabon v. National Labor Relations Commission, supra note 134, at 686.
136
 Associated Communications and Wireless Services, Ltd. v. Dumlao, G. R. No. 136762,
November 21, 2002, 392 SCRA 269.
137
 Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
138
 G.R. No. 180719, August 22, 2008. See also PCL Shipping Philippines, Inc. v.
National Labor Relations Commission. G.R. No. 153031, December 14, 2006, 511 SCRA
44.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180771               April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON

STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER
CETACEAN SPECIES, Joined in and Represented herein by Human Beings Gloria
Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the
Lesser Life-Forms and as Responsible Stewards of God's Creations, Petitioners, 
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department
of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR
Regional Director-Region VII and in his capacity as Chairperson of the Tañon Strait
Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources
(BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for
Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD.
(JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES,
INC. Respondents.

x-----------------------x

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.

ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity and
as representatives of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES
OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE
PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE
SIMILARLY AFFECTED, Petitioners, 
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment
and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR
Regional Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape
Management Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental
Management Bureau-Region VII, DOE Regional Director for Region VIII 1 ANTONIO
LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by
its Philippine Agent, SUPPLY OILFIELD SERVICES, INC., Respondents.

CONCURRING OPINION
 "Until one has loved an animal, a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the
issues. The human petitioners implead themselves in a representative capacity "as legal
guardians of the lesser life-forms and as responsible stewards of God's Creations."1 They use
Oposa v. Factoran, Jr.2 as basis for their claim, asserting their right to enforce international and
domestic environmental laws enacted for their benefit under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the human petitioners assert that
they have the obligation to build awareness among the affected residents of Tañon Strait as well
as to protect the environment, especially in light of the government's failure, as primary steward,
to do its duty under the doctrine of public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to
continue to define environmental rights in the context of actual cases is commendable. However,
the space for legal creativity usually required for advocacy of issues of the public interest is not
so unlimited that it should be allowed to undermine the other values protected by current
substantive and procedural laws. Even rules of procedure as currently formulated set the balance
between competing interests. We cannot abandon these rules when the necessity is not clearly
and convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights
for animals through their allegation that they can speak for them. Obviously, we are asked to
accept the premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait;
(b) they were chosen by a representative group of all the species of the Resident Marine
Mammals; (c) they were able to communicate with them; and (d) they received clear consent
from their animal principals that they would wish to use human legal institutions to pursue their
interests. Alternatively, they ask us to acknowledge through judicial notice that the interests that
they, the human petitioners, assert are identical to what the Resident Marine Mammals would
assert had they been humans and the legal strategies that they invoked are the strategies that they
agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law
cannot be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have
legal standing to sue with respect to the issue raised in their pleading. The rules on standing have
already been liberalized to take into consideration the difficulties in the assertion of
environmental rights. When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.

Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by
law; their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which
the law grants a juridical personality, separate and distinct from that of each shareholder,
partner or member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe,
the provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of the
real party in interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and
based on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party
in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by

a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the real party in interest. A representative may be a
trustee of an express rust, a guardian, an executor or administrator, or a party authorized by law
or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves things
belonging to the principal.(3a)9

The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly
or actually benefit or suffer from the judgment, but instead brings a case in favor of an identified
real party in interest.10 The representative is an outsider to the cause of action. Second, the rule
provides a list of who may be considered as "representatives." It is not an exhaustive list, but the
rule limits the coverage only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that for
the Petition of the human petitioners to prosper, they must show that (a) the Resident Marine
Mammals are real parties in interest; and (b) that the human petitioners are authorized by law or
the Rules to act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the
issue of whether animals have legal standing before courts has been the subject of academic
discourse in light of the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the
same way court-appointed guardians bring suit on behalf of mentally-challenged humans who
possess an enforceable right but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek
judicial redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already
well-equipped with a reliable mechanism by which nonhumans may obtain standing via a
judicially established guardianship. Stone notes that other speechless - and nonhuman - entities
such as corporations, states, estates, and municipalities have standing to bring suit on their own
behalf. There is little reason to fear abuses under this regime as procedures for removal and
substitution, avoiding conflicts of interest, and termination of a guardianship are well
established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are not
well-established prior to commencing legal action. ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized activism for and commitment
to the dispute independent of its desire to pursue legal action. The court's analysis suggests that a
qualified organization with a demonstrated commitment to a cause could indeed bring suit on
behalf of the speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to
serve as official guardians ad !item on behalf of nonhuman animals interests. The American legal
system has numerous mechanisms for representing the rights and interests of nonhumans; any
challenges inherent in extending these pre-existing mechanisms to nonhuman animals are
minimal compared to an interest in the proper administration of justice. To adequately protect the
statutory rights of nonhuman animals, the legal system must recognize those statutory rights
independent of humans and provide a viable means of enforcement. Moreover, the idea of a
guardianship for speechless plaintiffs is not new and has been urged on behalf of the natural
environment. 'Such a model is even more compelling as applied to nonhuman animals, because
they are sentient beings with the ability to feel pain and exercise rational thought. Thus, animals
are qualitatively different from other legally protected nonhumans and therefore have interests
deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided
for citizen suit provisions: the most well-known example is found in the Endangered Species Act
(ESA). Such provisions are evidence of legislative intent to encourage civic participation on
behalf of nonhuman animals. Our law of standing should reflect this intent and its implication
that humans are suitable representatives of the natural environment, which includes nonhuman
animals.14 (Emphasis supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as

similarly situated as individuals who have enforceable rights but, for a legitimate reason (e.g.,
cognitive disability), are unable to bring suit for themselves. They are also similar to entities that
by their very nature are incapable of speaking for themselves (e.g., corporations, states, and
others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as
having standing to sue and, therefore, may be properly represented as real parties in interest. The
same cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we
represent their best interests and can, therefore, speak for them before the courts. As humans, we
cannot be so arrogant as to argue that we know the suffering of animals and that we know what
remedy they need in the face of an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court
for the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court
held that an emotional response to what humans perceive to be an injury inflicted on an animal is
not within the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of
or as a substitute for an actual injury suffered by the claimant. 17 The ability to represent animals
was further limited in that case by the need to prove "genuine dedication" to asserting and
protecting animal rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment
of animals from the general disdain for animal cruelty shared by the public at large. In doing so,
the court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA
to the ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are not
well-established prior to commencing legal action. ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized activism for and commitment
to the dispute independent of its desire to pursue legal action. The court's analysis suggests that a
qualified organization with a demonstrated commitment to a cause could indeed bring suit on
behalf of the speechless in the form of a court-sanctioned guardianship. 18 (Emphasis supplied,
citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for
Environmental Cases. A citizen suit allows any Filipino to act as a representative of a party who
has enforceable rights under environmental laws before Philippine courts, and is defined in
Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let
alone present that they would wish to use our court system, which is designed to ensure that
humans seriously carry their responsibility including ensuring a viable ecology for themselves,
which of course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have
given to the rule on standing. While representatives are not required to establish direct injury on
their part, they should only be allowed to represent after complying with the following: [I]t is
imperative for them to indicate with certainty the injured parties on whose behalf they bring the
suit. Furthermore, the interest of those they represent must be based upon concrete legal rights. It
is not sufficient to draw out a perceived interest from a general, nebulous idea of a potential
"injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined
that procedural liberality, especially in cases brought by representatives, should be used with
great caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational
responsibility" is a noble principle, it should not be used to obtain judgments that would preclude
future generations from making their own assessment based on their actual concerns. The present
generation must restrain itself from assuming that it can speak best for those who will exist at a
different time, under a different set of circumstances. In essence, the unbridled resort to
representative suit will inevitably result in preventing future generations from protecting their
own rights and pursuing their own interests and decisions. It reduces the autonomy of our
children and our children 's children. Even before they are born, we again restricted their ability
to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any
countervailing interests existing within the population represented or those that are yet to be
born; and d) there is an absolute necessity for such standing because there is a threat of
catastrophe so imminent that an immediate protective measure is necessary. Better still, in the
light of its costs and risks, we abandon the precedent all together.23 (Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He
or she who invokes the court's jurisdiction must be the "owner of the right sought to be
enforced." In other words, he or she must have a cause of action. An action may be dismissed on
the ground of lack of cause of action if the person who instituted it is not the real party in
interest.24 The term "interest" under the Rules of Court must refer to a material interest that is not
merely a curiosity about or an "interest in the question involved." The interest must be present
and substantial. It is not a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The
person represented is deemed the real party in interest. The representative remains to be a third
party to the action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit
under this rule allows any Filipino citizen to file an action for the enforcement of environmental
law on behalf of minors or generations yet unborn. It is essentially a representative suit that
allows persons who are not real parties in interest to institute actions on behalf of the real party in
interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the
capacity of minors (represented by their parents) to file a class suit on behalf of succeeding
generations based on the concept of intergenerational responsibility to ensure the future
generation's access to and enjoyment of [the] country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this
court. Third, automatically allowing a class or citizen's suit on behalf of minors and generations
yet unborn may result in the oversimplification of what may be a complex issue, especially in
light of the impossibility of determining future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res
judicata upon them and conclusive upon the issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of
"real party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are.
At best, humans can only surmise the extent of injury inflicted, if there be any. Petitions
invoking a right and seeking legal redress before this court cannot be a product of guesswork,
and representatives have the responsibility to ensure that they bring "reasonably cogent, rational,
scientific, well-founded arguments"26 on behalf of those they represent.

Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as
it carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the
human petitioners have no legal standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in
interest and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos
whose rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46)
directly affected their source of livelihood, primarily felt through the significant reduction of
their fish harvest.27 The actual, direct, and material damage they suffered, which has potential
long-term effects transcending generations, is a proper subject of a legal suit.

III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied
petitioners, most especially when the implied petitioner was a sitting President of the Republic of
the Philippines. In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal
guardians" of whales, dolphins, porpoises, and other cetacean species, human petitioners also
impleaded Former President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her
express declaration and undertaking in the ASEAN Charter to protect Tañon Strait."28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her
consent. In our jurisdiction, only when there is a party that should have been a necessary party
but was unwilling to join would there be an allegation as to why that party has been omitted. In
Rule 3, Section 9 of the 1997 Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a

claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known,
and shall state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed
a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary
party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained
should be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3,
Section 10 of the 1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff
can not be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action
but who do not consent should be put within the jurisdiction of the court through summons or
other court processes. Petitioners. should not take it upon themselves to simply imp lead any
party who does not consent as a petitioner. This places the unwilling co-petitioner at the risk of
being denied due process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's
name should be stricken out of the title of this case.

IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a
protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article
XII, Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co.,
Ltd. (JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly
classified as a technical and financial assistance agreement executed under Article XII, Section
2, paragraph 4 of the 1987 Constitution.33 Public respondents counter that SC-46 does not fall
under the coverage of paragraph 1, but is a validly executed contract under paragraph 4.34· Public
respondents further aver that SC-46 neither granted exclusive fishing rights to JAPEX nor
violated Central Visayas Fisherfolk Development Center's right to preferential use of communal
marine and fishing resources.35

VI

Article XII, Section 2 of the 1987 Constitution states:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception. of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water supply
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in
rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific
and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development,
and use of natural resources, but only through either financial agreements or technical ones. This
is the clear import of the words "either financial or technical assistance agreements." This is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the

natural resources of the Philippines shall be limited to citizens of the Philippines, or to
corporations or association at least sixty per centum of the capital of which is owned by such
citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations,
or associations to enter into service contracts for financial, technical, management, or other
forms of assistance with any foreign person or entity for the exploitation, development,
exploitation, or utilization of any of the natural resources. Existing valid and binding service
contracts for financial, the technical, management, or other forms of assistance are hereby
recognized as such. (Emphasis supplied)

1935 CONSTITUTION

ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources
of the Philippines belong to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, renewable
for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be
the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer
interpretation from the Constitutional Commission deliberations. The constitutional texts are the
product of a full sovereign act: deliberations in a constituent assembly and ratification. Reliance
on recorded discussion of Constitutional Commissions, on the other hand, may result in
dependence on incomplete authorship; Besides, it opens judicial review to further subjectivity
from those who spoke during the Constitutional Commission deliberations who may not have
predicted how their words will be used. It is safer that we use the words already in the
Constitution. The Constitution was their product. Its words were read by those who ratified it.
The Constitution is what society relies upon even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before
an agreement is presented to the President for signature, it will have been vetted several
times over at different levels to ensure that it conforms to law and can withstand public
scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress
to give that branch of government an opportunity to look over the agreement and
interpose timely objections, if any.37(Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on
behalf of the government; and (c) whether it was reported by the President to Congress within 30
days of execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87
or the Oil Exploration and Development Act of 1972.1âwphi1 It is my opinion that this law is
unconstitutional in that it allows service contracts, contrary to Article XII, Section 2 of the 1987
Constitution:
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific
and technical resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President
may enter into with foreign-owned corporations for exploration and utilization of resources
means that service contracts are no longer allowed by the Constitution. Pursuant to Article
XVIII, Section 3 of the 1987 Constitution,38 this inconsistency renders the law invalid and
ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion
emphasizes an important point, which is that SC-46 did not merely involve exploratory activities,
but also provided the rights and obligations of the parties should it be discovered that there is oil
in commercial quantities in the area. The Tañon Strait being a protected seascape under
Presidential Decree No. 123439 requires that the exploitation and utilization of energy resources
from that area are explicitly covered by a law passed by Congress specifically for that purpose,
pursuant to Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to Congress.
Any exploitation and utilization of energy resources found within NIP AS areas shall be allowed
only through a law passed by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of an
oil exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities
could have been validly undertaken under SC-46. The National Integrated Protected Areas
System Act of 1992 is clear that exploitation and utilization of energy resources in a protected
seascape such as Tañon Strait shall only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary
Vicente S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases
where the Constitution or law requires the President to act personally on the matter, the duty
cannot be delegated to another public official.41 La Bugal highlights the importance of the
President's involvement, being one of the constitutional safeguards against abuse and corruption,
as not mere formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate
service contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime. 42 (Emphasis
in the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved
in the signing or execution of SC-46. The failure to comply with this constitutional requirement
renders SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the
validity of any service contract involving the exploration, development, and utilization of
Philippine petroleum. Public respondents' failure to report to Congress about SC-46 effectively
took away any opportunity for the legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.

I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also
null and void for being violative of environmental laws protecting Tañon Strait. In particular,
SC-46 was implemented despite falling short of the requirements of the National Integrated
Protected Areas System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting
and maintaining the natural biological and physical diversities of the environment notably on
areas with biologically unique features to sustain human life and development, as well as plant
and animal life, it is hereby declared the policy of the State to secure for the Filipino people of
present and future generations the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas within the
classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and
related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as
"protected areas."44 (Emphasis supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental
Impact Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the
scope of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.45 (Emphasis supplied)

The same provision further requires that an Environmental Compliance Certificate be secured
under the Philippine Environmental Impact Assessment System before arty project is
implemented:

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA)
system. In instances where such activities are allowed to be undertaken, the proponent shall plan
and carry them out in such manner as will minimize any adverse effects and take preventive and
remedial action when appropriate. The proponent shall be liable for any damage due to lack of
caution or indiscretion.46 (Emphasis supplied)

In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The
program shall also be submitted to the President, who in turn will recommend the program to
Congress. Furthermore, Congress must enact a law specifically allowing the exploitation of
energy resources found within a protected area such as Tañon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to Congress.
Any exploitation and utilization of energy resources found within NIPAS areas shall be allowed
only through a taw passed by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by
SC-46 fell under Section 14 of the National Integrated Protected Areas System Act of 1992,
which they interpret to be an exception to Section 12. They argue that the Environmental
Compliance Certificate is not a strict requirement for the validity of SC-46 since (a) the Tañon
Strait is not a nature' reserve or natural park; (b) the exploration was merely for gathering
information; and ( c) measures were in place to ensure that the exploration caused the least
possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for
cases involving Philippine energy resources. The National Integrated Protected Areas System
Act of 1992 was enacted to recognize the importance of protecting the environment in light of
resource exploitation, among others.50 Systems are put in place to secure for Filipinos local
resources under the most favorable conditions. With the status of Tañon Strait as a protected
seascape, the institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46.
Based on the records, JAPEX commissioned an environmental impact evaluation only in the
second subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas
System Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient
species, we do not lack in the wisdom or sensitivity to realize that we only borrow the resources
that we use to survive and to thrive. We are not incapable of mitigating the greed that is slowly
causing the demise of our planet. Thus, there is no need for us to feign representation of any
other species or some imagined unborn generation in filing any action in our courts of law to
claim any of our fundamental rights to a healthful ecology. In this way and with candor and
courage, we fully shoulder the responsibility deserving of the grace and power endowed on our
species.
ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of
Former President Gloria Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice

Footnotes
1
 Rollo (G.R. No. 180771), p. 7-8.
2
 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].
3
 Rollo (G.R. No. 180771), p. 16.
4
 Rollo (G.R. No. 180771), p. 123-124.
5
 Id. at 196.
6
 1997 RULES OF CIV. PROC., Rule 3, sec. 2.
7
 See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second Division].
8
 Rebollido v. Court of Appeals, 252 Phil. 831, 839 (1989) [Per J. Gutierrez, Jr., Third
Division], citing Lee et al. v. Romillo, Jr., 244 Phil. 606, 612 ( 1988) [Per J. Gutierrez,
Jr., Third Division].
9
 1997 RULES OF CIV. PROC., Rule 3, sec. 3.
10
 Ang, represented by Aceron v. Spouses Ang, G.R. No. 186993, August 22, 2012, 678
SCRA 699, 709 [Per J. Reyes, Second Division]. ·
11
 1997 RULESOFCIV. PROC., Rule 3, sec. 3.
12
 Rollo (G.R No. 180771), p. 8.
13
 Marguerite Hogan, Standing for Nonhuman Animals: Developing a Guardianship
Model from the Dissents in Sierra Club v. Morton, 95 CAL. L. REV. 513 (2007)

<http://scholarship.law.berkeley.edu/califomialawreview/vol95/iss2/4> (visited March

15, 2015).
14
 Id. at 517-519.
15
 Id. at 513-514. Footnote 1 of Marguerite Hogan's article cites this case as Animal
Lovers Volunteer Ass'n v. Weinberger, 765 F.2d 937, 938 (9th Cir., 1985).
16
 In that case, the claim was based on a law called "National Environmental Policy Act."
17
 Marguerite Hogan, Standing for Nonhuman Animals: Developing a Guardianship
Model from the Dissents in Sierra. Club v. Morton, 95 CAL. L. REV. 513, 514 (2007)
<http://scholarship.law.berkeley.edu/califomialawreview/vol95/iss2/4> (visited March
15, 2015).
18
 Id. at 515, 518.
19
 J. Leonen, Concurring Opinion in Arigo v. Swift, G.R No. 206510, September 14, 2014

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/september2014/206510 _ leonen.pdf> [Per J. Villarama, Jr., En
Banc].
20
 Id. at 11.
21
 J. Leanen, Concurring and Dissenting Opinion in Paje v. Casino, G.R. No. 205257,
February 3, 2015 <http://sc.judiciary.gov .ph/pdf/web/viewer.htm l?fi!
e=/jurisprudence/2015/february2015/207257_leonen.pdf> [Per J. Del Castillo, En Banc].
22
 G.R. No. 101083, July 30, 1993, 224 SCRA 792, 803 [Per J. Davide, Jr., En Banc].
23
 J. Leanen, Concurring Opinion in Arigo v. Swift, G.R No. 206510, September 14,
2014, 13 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/september:iO 14/206510 _leonen.pdf> [Per J. Villarama, Jr., En
Banc].
24
 J. Leanen, Concurring and Dissenting Opinion in Paje v. Casino, G.R. No. 205257,
February 3, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/20l5/february2015/207257 _ leonen.pdf> [Per J. Del Castillo, En
Banc]. See also De Leon v. Court of Appeals, 343 Phil. 254, 265 (1997) [Per J. Davide,
Jr., Third Division], citing Columbia Pictures, Inc. v. Court of Appeals, 329 Phil. 875,
900-902 (1996) [Per J. Regalado, En Banc].
25
 J. Leonen, Concurring and Dissenting Opinion in Paje v. Casino, G.R. No. 205257,
February 3, 2015, 3-5 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/20l5/february2015/207257_leonen.pdt> [Per J. Del Castillo, En
Banc].
26
 Id. at 7.
27
 Rollo (G.RNo.180771), p.12.
28
 Id. at 8.
29
 1997 RULES OF CIV. PROC., Rule 3, sec. 9.
30
 1997 RULES OP CIV. PROC., Rule 3, sec. 10. e 31
31
 Declaring the Tañon Strait Situated in the Provinces of Cebu, Negros Occidental and
Negros Oriental as a Protected Area Pursuant to R.A. 7586 (NIPAS Act of 1992) and
Shall be Known as Tañon Strait Protected Seascape, May 27, 1998.
32
 Rollo (G.R No. 181527), p. 26.
33
 Id. at 26-28.
34
 Rollo (G.R No. 180771), p. 81-83.
35
 Id.
36
 486 Phil. 754 (2004) [Per J. Panganiban, En Banc].
37
 Id. at 815.
38
 Section 3. All existing laws, decrees, executive orders, proclamations, letters of
instructions, and other executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.
39
 Declaring the Tañon Strait Situated in the Provinces of Cebu, Negros Occidental and
Negros Oriental as a Protected Area Pursuant to R.A. 7586 (NIPAS Act of 1992) and
Shall be Known as Tañon Strait Protected Seascape, May 27, 1998.
40
 Rep. Act No. 7856 (1992), sec. 14.
41
 See Jason v. Executive Secretary Ruber Torres, 352 Phil. 888 (1998) [Per J. Puno,
Second Division].
42
 a Bugal-B'laan Tribal.Association, Inc. v. Ramos, 486 Phil. 754, 813-814 (2004) [Per J.
Panganiban, En Banc].
43
 Declaring the Tañon Strait Situated in the Provinces of Cebu, Negros Occidental and
Negros Oriental as a Protected Area Pursuant to R.A. 7586 (NIPAS Act of 1992) and
Shall be Known as Tañon Strait Protected Seascape, May 27, 1998.
44
 Rep. Act No. 7856 (1992), sec. 2.
45
 Rep. Act No. 7856 (1992), sec. 12.
46
 Rep. Act No. 7856 (1992), sec. 12.
47
 Rep. Act No. 7856 (1992), sec. 14.
48
 Rollo (G.R No. 180771), p. 91-92.
49
 Id. at 85.
50
 Rep. Act No. 7856 (1992), sec. 2.
51
 Rollo (G.R No. 181527), p. 58-59.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA,
minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA
NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA,
CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and
represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN,
minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and
MA. CONCEPCION, all surnamed MISA, minors and represented by their parents
GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented
by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO, 
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO
JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and
CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA.
ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA
ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by
their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and
MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors,
represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors,
represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, 
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the issue
of whether the said petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for
the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but are "so numerous
that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn." 4Consequently, it is prayed for
that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and
verdant rainforests in which varied, rare and unique species of flora and fauna may be found;
these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are
also the habitat of indigenous Philippine cultures which have existed, endured and flourished
since time immemorial; scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential,
industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a)
water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as
well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion
therein of salt water, incontrovertible examples of which may be found in the island of Cebu and
the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility
and agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora
and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of
the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-
billion peso dams constructed and operated for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to
process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such
as the phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as
a matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or

25 hectares per hour — nighttime, Saturdays, Sundays and holidays included —
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
— especially plaintiff minors and their successors — who may never see, use,
benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the

natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left
with a country that is desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines had been abundantly
blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary

to the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the policy of the State —
 (a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life

of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned

TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of
the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against
him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion,
the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no
cause of action against him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that
the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of
the plaintiffs-minors not only represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles
19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion
in granting Timber License Agreements (TLAs) to cover more areas for logging than what is
available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts.
They likewise submit that even if TLAs may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law.
They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory that the question of whether logging should be permitted
in the country is a political question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the petitioners' resources is not to
file an action to court, but to lobby before Congress for the passage of a bill that would ban
logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a certain
period of time — usually for twenty-five (25) years. During its effectivity, the same can neither
be revised nor cancelled unless the holder has been found, after due notice and hearing, to have
violated the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would
be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted
Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not
take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class
suit. The subject matter of the complaint is of common and general interest not just to several,
but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare
that the plaintiffs therein are numerous and representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section
12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant
petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can,
for themselves, for others of their generation and for the succeeding generations, file a class suit.
Their personality to sue in behalf of the succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers 
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find
for the petitioners and rule against the respondent Judge's challenged order for having been
issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of
the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
 assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding
section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of
the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby

disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the conservation,
development and utilization of the country's natural resources, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, 14Section 4 of which expressly mandates
that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to

ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development
and the use of the country's natural resources, not only for the present generation
but for future generations as well. It is also the policy of the state to recognize and
apply a true value system including social and environmental cost implications
 relative to their utilization, development and conservation of our natural
resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987,15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes
into account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources

shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve
as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos, and (c) to insure
the attainment of an environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17The latter statute, on the other hand, gave flesh
to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the
said right.

A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting
of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, 19 the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in
the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary
should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It
bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.

Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have
acted with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government
to strictly respect the said licenses according to their terms and conditions regardless of changes
in policy and the demands of public interest and welfare. He was aware that as correctly pointed
out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform
Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization

and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,

and is not a contract between the authority, federal, state, or municipal, granting it
and the person to whom it is granted; neither is it property or a property right, nor
does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they
are not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

 cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of
existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler 
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other
words, the constitutional guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder
is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.
SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

 Separate Opinions

FELICIANO, J.,  concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction
and course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought
to clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners'
claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the
legal interest which a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the 
future — it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the necessary locus
standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the
field of environmental protection, as against both the public administrative agency directly
concerned and the private persons or entities operating in the field or sector of activity involved.
Whether such beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the
decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There
is no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this rubic appears to be
entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories
and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of
dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or
cyanide and other chemicals; contamination of ground water resources; loss of certain species of
fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative
Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations ofpolicy, as general
and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right —
to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely
wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code
which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular government agency
charged with the formulation and implementation of guidelines and programs dealing with each
of the headings and sub-headings mentioned above. The Philippine Environment Code does not,
in other words, appear to contemplate action on the part of private persons who are beneficiaries
of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that Section
15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable
even in their present form. The implications of this doctrine will have to be explored in future
cases; those implications are too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal
right — a right cast in language of a significantly lower order of generality than Article II (15) of
the Constitution — that is or may be violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the Court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action
be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two
(2) reasons. One is that unless the legal right claimed to have been violated or disregarded is
given specification in operational terms, defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology"
and "the right to health" are combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it
is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental protection
and management, our courts have no claim to special technical competence and
experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific
terms and conditions of their concession agreements (and this, petitioners implicitly assume),
what will those companies litigate about? The answer I suggest is that they may seek to dispute
the existence of the specific legal right petitioners should allege, as well as the reality of the
claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or
failures to act of public respondent administrative agency. They may also controvert the
appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances
which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including
the forest cover of our territory, is of extreme importance for the country. The doctrines set out in
the Court's decision issued today should, however, be subjected to closer examination.

# Footnotes

1 Rollo, 164; 186.

2 Id., 62-65, exclusive of annexes.

3 Under Section 12, Rule 3, Revised Rules of Court.

4 Rollo, 67.

5 Id., 74.

6 Rollo, 70-73.

7 Annex "B" of Petitions; Id., 43-44.

8 Paragraph 7, Petition, 6; Rollo, 20.

9 Webster's Third New International Dictionary, unabridged, 1986, 1508.

10 Title XIV (Environment and Natural Resources), Book IV of the

Administrative Code of 1987, E.O. No. 292.

11 Annex "B" of Petition; Rollo, 43-44.

12 Record of the Constitutional Commission, vol. 4, 913.

13 For instance, the Preamble and Article XII on the National Economy and
Patrimony.
14 The Reorganization Act of the Department of Environment and Natural
Resources.

15 E.O. No. 292.

16 Section 1.

17 Section 2.

18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community
Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda.
de Yulo, 16 SCRA 251 [1966]; Caseñas vs. Rosales, 19 SCRA 462 [1967]; Virata
vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1
[1991].

19 Section 1(q), Rule 16, Revised Rules of Court.

20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs.
Sandiganbayn, supra; Madrona vs. Rosal, supra.

21 39 SCRA 473, 479 [1971].

22 1991 ed., 226-227.

23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377
[1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202
SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767
[1991].

24 Rollo, 44.

25 125 SCRA 302, 325 [1983].

26 190 SCRA 673, 684 [1990].

27 Article III, 1987 Constitution.

28 110 Phil. 198, 203 [1960]; footnotes omitted.

29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.

30 22 SCRA 135, 146-147 [1968].

31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler

Corp. supra.; Phil. American Life Insurance Co. vs. Auditor General, supra.;
Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano vs. Elizalde Rope Workers'
 Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA
623 [1987].

EN BANC

G.R. No. 152895             June 15, 2004

OFELIA V. ARCETA, petitioner, 
vs.
The Honorable MA. CELESTINA C. MANGROBANG, Presiding Judge, Branch 54,
Metropolitan Trial Court of Navotas, Metro Manila, respondent.

x--------------------------x

G.R. No. 153151 June 15, 2004

GLORIA S. DY, Petitioner, 
vs.
The Honorable EDWIN B. RAMIZO, Presiding Judge, Branch 53, Metropolitan Trial
Court of Caloocan City, respondent.

RESOLUTION

QUISUMBING, J.:

For resolution are two consolidated1 petitions under Rule 65 of the Rules of Court, for certiorari,
prohibition and mandamus, with prayers for a temporary restraining order. Both assail the
constitutionality of the Bouncing Checks Law, also known as Batas Pambansa Bilang 22.

In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the Metropolitan Trial Court
(MeTC) of Navotas, Metro Manila, Branch 54, to cease and desist from hearing Criminal Case
No. 1599-CR for violation of B.P. Blg. 22, and then dismiss the case against her. In G.R. No.
153151, petitioner Gloria S. Dy also prays that this Court order the MeTC of Caloocan City to
cease and desist from proceeding with Criminal Case No. 212183, and subsequently dismiss the
case against her. In fine, however, we find that what both petitioners seek is that the Court should
revisit and abandon the doctrine laid down in Lozano v. Martinez,2 which upheld the validity of
the Bouncing Checks Law.

The facts of these cases are not in dispute.

1. G.R. No. 152895

The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with violating B.P. Blg.
22 in an Information, which was docketed as Criminal Case No. 1599-CR. The accusatory
portion of said Information reads:

That on or about the 16th day of September 1998, in Navotas, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, unlawfully and feloniously make or draw and issue to OSCAR R. CASTRO, to
apply on account or for value the check described below:

Check No.: 00082270

 Drawn Against: The Region Bank
In the Amount of: ₱740,000.00
Date: December 21, 1998
Payable to: Cash

said accused well-knowing that at the time of issue Ofelia V. Arceta did not have
sufficient funds or credit with the drawee bank for the payment, which check when
presented for payment within ninety (90) days from the date thereof was subsequently
dishonored by the drawee bank for reason "DRAWN AGAINST INSUFFICIENT
FUNDS," and despite receipt of notice of such dishonor, the accused failed to pay said
payee with the face amount of said check or to make arrangement for full payment
thereof within five (5) banking days after receiving notice.

CONTRARY TO LAW.3

Arceta did not move to have the charge against her dismissed or the Information quashed on the
ground that B.P. Blg. 22 was unconstitutional. She reasoned out that with the Lozano doctrine
still in place, such a move would be an exercise in futility for it was highly unlikely that the trial
court would grant her motion and thus go against prevailing jurisprudence.

On October 21, 2002,4 Arceta was arraigned and pleaded "not guilty" to the charge. However,
she manifested that her arraignment should be without prejudice to the present petition or to any
other actions she would take to suspend proceedings in the trial court.

Arceta then filed the instant petition.

2. G.R. No. 153151

The Office of the City Prosecutor of Caloocan filed a charge sheet against Gloria S. Dy for
violation of the Bouncing Checks Law, docketed by the MeTC of Caloocan City as Criminal
Case No. 212183. Dy allegedly committed the offense in this wise:

That on or about the month of January 2000 in Caloocan City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and feloniously make and issue Check No. 0000329230
drawn against PRUDENTIAL BANK in the amount of ₱2,500,000.00 dated January 19,
2000 to apply for value in favor of ANITA CHUA well knowing at the time of issue that
she has no sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment which check was subsequently dishonored for the
reason "ACCOUNT CLOSED" and with intent to defraud failed and still fails to pay the
said complainant the amount of ₱2,500,000.00 despite receipt of notice from the drawee
bank that said check has been dishonored and had not been paid.

Contrary to Law.5
Like Arceta, Dy made no move to dismiss the charges against her on the ground that B.P. Blg. 22
was unconstitutional. Dy likewise believed that any move on her part to quash the indictment or
to dismiss the charges on said ground would fail in view of the Lozano ruling. Instead, she filed a
petition with this Court invoking its power of judicial review to have the said law voided for
Constitutional infirmity.

Both Arceta and Dy raise the following identical issues for our resolution:

[a] Does section 1 really penalize the act of issuing a check subsequently dishonored by
the bank for lack of funds?

[b] What is the effect if the dishonored check is not paid pursuant to section 2 of BP 22?

[c] What is the effect if it is so paid?

[d] Does section 2 make BP 22 a debt collecting law under threat of imprisonment?

[e] Does BP 22 violate the constitutional proscription against imprisonment for non-
payment of debt?

[f] Is BP 22 a valid exercise of the police power of the state?6

After minute scrutiny of petitioners’ submissions, we find that the basic issue being raised in
these special civil actions for certiorari, prohibition, and mandamus concern the
unconstitutionality or invalidity of B.P. Blg. 22. Otherwise put, the petitions constitute an
oblique attack on the constitutionality of the Bouncing Checks Law, a matter already passed
upon by the Court through Justice (later Chief Justice) Pedro Yap almost two decades ago.
Petitioners add, however, among the pertinent issues one based on the observable but worrisome
transformation of certain metropolitan trial courts into seeming collection agencies of creditors
whose complaints now clog the court dockets.

But let us return to basics. When the issue of unconstitutionality of a legislative act is raised, it is
the established doctrine that the Court may exercise its power of judicial review only if the
following requisites are present: (1) an actual and appropriate case and controversy exists; (2) a
personal and substantial interest of the party raising the constitutional question; (3) the exercise
of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question raised
is the very lis mota of the case.7 Only when these requisites are satisfied may the Court assume
jurisdiction over a question of unconstitutionality or invalidity of an act of Congress. With due
regard to counsel’s spirited advocacy in both cases, we are unable to agree that the abovecited
requisites have been adequately met.

Perusal of these petitions reveals that they are primarily anchored on Rule 65, Section 18 of the
1997 Rules of Civil Procedure. In a special civil action of certiorari the only question that may be
raised is whether or not the respondent has acted without or in excess of jurisdiction or with
grave abuse of discretion.9 Yet nowhere in these petitions is there any allegation that the
respondent judges acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. A special civil action for certiorari will prosper only if a grave abuse of discretion is
manifested.10

Noteworthy, the instant petitions are conspicuously devoid of any attachments or annexes in the
form of a copy of an order, decision, or resolution issued by the respondent judges so as to place
them understandably within the ambit of Rule 65. What are appended to the petitions are only
copies of the Informations in the respective cases, nothing else. Evidently, these petitions for a
writ of certiorari, prohibition and mandamus do not qualify as the actual and appropriate cases
contemplated by the rules as the first requisite for the exercise of this Court’s power of judicial
review. For as the petitions clearly show on their faces petitioners have not come to us with
sufficient cause of action.

Instead, it appears to us that herein petitioners have placed the cart before the horse, figuratively
speaking. Simply put, they have ignored the hierarchy of courts outlined in Rule 65, Section
411 of the 1997 Rules of Civil Procedure. Seeking judicial review at the earliest opportunity does
not mean immediately elevating the matter to this Court. Earliest opportunity means that the
question of unconstitutionality of the act in question should have been immediately raised in the
proceedings in the court below. Thus, the petitioners should have moved to quash the separate
indictments or moved to dismiss the cases in the proceedings in the trial courts on the ground of
unconstitutionality of B.P. Blg. 22. But the records show that petitioners failed to initiate such
moves in the proceedings below. Needless to emphasize, this Court could not entertain questions
on the invalidity of a statute where that issue was not specifically raised, insisted upon, and
adequately argued.12 Taking into account the early stage of the trial proceedings below, the
instant petitions are patently premature.

Nor do we find the constitutional question herein raised to be the very lis mota presented in the
controversy below. Every law has in its favor the presumption of constitutionality, and to justify
its nullification, there must be a clear and unequivocal breach of the Constitution, and not one
that is doubtful, speculative or argumentative.13 We have examined the contentions of the
petitioners carefully; but they still have to persuade us that B.P. Blg. 22 by itself or in its
implementation transgressed a provision of the Constitution. Even the thesis of petitioner Dy that
the present economic and financial crisis should be a basis to declare the Bouncing Checks Law
constitutionally infirm deserves but scant consideration. As we stressed in Lozano, it is precisely
during trying times that there exists a most compelling reason to strengthen faith and confidence
in the financial system and any practice tending to destroy confidence in checks as currency
substitutes should be deterred, to prevent havoc in the trading and financial communities.
Further, while indeed the metropolitan trial courts may be burdened immensely by bouncing
checks cases now, that fact is immaterial to the alleged invalidity of the law being assailed. The
solution to the clogging of dockets in lower courts lies elsewhere.

WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.

SO ORDERED.

Davide, Jr., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-

Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,  and Tinga, JJ., concur.
Footnotes
1
 Per Resolution of the Court En Banc dated 15 October 2002.
2
 No. L-63419, 18 December 1986, 146 SCRA 323.
3
 Rollo, G.R. No. 152895, p. 61.
4
 Id. at 76.
5
 Rollo, G.R. No. 153151, p. 58.
6
 Rollo, G.R. No. 152895, pp. 8-9; Rollo, G.R. No. 153151, p. 8.
7
 Philippine Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994, 235
SCRA 506, 518-519 citing Luz Farms v. Secretary of the Department of Agrarian
Reform, G.R. No. 86889, 4 December 1990, 192 SCRA 51, 58; Dumlao v. COMELEC,
No. L-52245, 22 January 1980, 95 SCRA 392, 400; People v. Vera, No. 45685, 16
November 1937, 65 Phil. 56, 86-89.
8
 SECTION 1. Petition for certiorari. – When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order
or resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of Section 3, Rule 46.
9
 II Feria and Noche, Civil Procedure Annotated 456 (2001 Ed.).
10
 Jalandoni v. Drilon, G.R. Nos. 115239-40, 2 March 2000, 327 SCRA 107, 121.
11
 SEC. 4. When and where petition filed. – The petition shall be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in the
Regional Trial Court exercising jurisdiction over the territorial area as defined by
 the Supreme Court. It may also be filed in the Court of Appeals whether or not the
same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of
its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, unless otherwise provided by law or these rules, the petition shall be filed
in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding 15 days.
12
 Reyes v. Court of Appeals, G.R. No. 118233, 10 December 1999, 378 Phil. 232, 240
citing City of Baguio, Reforestation Administration v. Hon. Marcos, G.R. No. L-26100,
28 February 1969, 136 Phil. 569, 579.
13
 Lacson v. The Executive Secretary, G.R. No. 128096, 20 January 1999, 361 Phil. 251,
263.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 209287               February 3, 2015

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG

MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S
PARTY REPRESENTATIVE; REP. TERRY L. RIDON, KABATAAN PARTYLIST
REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAYAN MUNA PARTY-
LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF
BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER
MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA,
CONVENOR, YOUTH ACT NOW, Petitioners, 
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

x-----------------------x

G.R. No. 209135

AUGUSTO L. SYJUCO JR., Ph.D., Petitioner, 

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT
OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON,
IN HIS CAPACITY AS THE SENATE PRESIDENT OF THE
PHILIPPINES, Respondents.

x-----------------------x

G.R. No. 209136

MANUELITO R. LUNA, Petitioner, 
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.

x-----------------------x

G.R. No. 209155

ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner 

vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.

x-----------------------x

G.R. No. 209164

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY

DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
BRIONES, Petitioners, 
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B.
ABAD, Respondents.

x-----------------------x

G.R. No. 209260

INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner, 

vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM),Respondent.

x-----------------------x

G.R. No. 209442

GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN M. ABANTE AND REV.

JOSE L. GONZALEZ,Petitioners, 
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON;
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V.
PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V.
DE LEON,Respondents.

x-----------------------x

G.R. No. 209517

CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF

GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE
PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-NHA); MANUEL
BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA);
ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU);
AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN
PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKK-MMDA),Petitioners, 
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON.
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

x-----------------------x

G.R. No. 209569

VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ACC), REPRESENTED BY

DANTE L. JIMENEZ,Petitioner, 
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

RESOLUTION

BERSAMIN, J.:

The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.1

Before the Court are the Motion for Reconsideration2 filed by the respondents, and the Motion
for Partial Reconsideration3 filed by the petitioners in G.R. No. 209442.

In their Motion for Reconsideration, the respondents assail the decision4 promulgated on July 1
2014 upon the following procedural and substantive errors, viz:

PROCEDURAL

WITHOUT AN ACTUAL CASE OR CONTROVERSY, ALLEGATIONS OF GRAVE ABUSE

OF DISCRETION ON THE PART OF ANY INSTRUMENTALITY OF THE GOVERNMENT
CANNOT CONFER ON THIS HONORABLE COURT THE POWER TO DETERMINE THE
CONSTITUTIONALITY OF THE DAP AND NBC NO. 541

II

PETITIONERS’ ACTIONS DO NOT PRESENT AN ACTUAL CASE OR CONTROVERSY

AND THEREFORE THIS HONORABLE COURT DID NOT ACQUIRE JURISDICTION
 III

PETITIONERS HAVE NEITHER BEEN INJURED NOR THREATENED WITH INJURY AS

A RESULT OF THE OPERATION OF THE DAP AND THEREFORE SHOULD HAVE
BEEN HELD TO HAVE NO STANDING TO BRING THESE SUITS FOR CERTIORARI
AND PROHIBITION

IV

NOR CAN PETITIONERS’ STANDING BE SUSTAINED ON THE GROUND THAT THEY

ARE BRINGING THESE SUITS AS CITIZENS AND AS TAXPAYERS

THE DECISION OF THIS HONORABLE COURT IS NOT BASED ON A CONSIDERATION

OF THE ACTUAL APPLICATIONS OF THE DAP IN 116 CASES BUT SOLELY ON AN
ABSTRACT CONSIDERATION OF NBC NO. 5415

SUBSTANTIVE

THE EXECUTIVE DEPARTMENT PROPERLY INTERPRETED "SAVINGS" UNDER THE

RELEVANT PROVISIONS OF THE GAA

II

ALL DAP APPLICATIONS HAVE APPROPRIATION COVER

III

THE PRESIDENT HAS AUTHORITY TO TRANSFER SAVINGS TO OTHER

DEPARTMENTS PURSUANT TO HIS CONSTITUTIONAL POWERS

IV

THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT REVENUE COLLECTIONS
FROM EACH SOURCE OF REVENUE ENUMERATED IN THE BUDGET PROPOSAL
MUST EXCEED THE CORRESPONDING REVENUE TARGET

THE OPERATIVE FACT DOCTRINE WAS WRONGLY APPLIED6

The respondents maintain that the issues in these consolidated cases were mischaracterized and
unnecessarily constitutionalized; that the Court’s interpretation of savings can be overturned by
legislation considering that savings is defined in the General Appropriations Act (GAA), hence
making savings a statutory issue;7 that the withdrawn unobligated allotments and unreleased
appropriations constitute savings and may be used for augmentation;8 and that the Court should
apply legally recognized norms and principles, most especially the presumption of good faith, in
resolving their motion.9

On their part, the petitioners in G.R. No. 209442 pray for the partial reconsideration of the
decision on the ground that the Court thereby:

FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS

UNDER THE DISBURSEMENT ACCELERATION PROGRAM (DAP) USED FOR
ALLEGED AUGMENTATION OF APPROPRIATION ITEMS THAT DID NOT HAVE
ACTUAL DEFICIENCIES10

They submit that augmentation of items beyond the maximum amounts recommended by the
President for the programs, activities and projects (PAPs) contained in the budget submitted to
Congress should be declared unconstitutional.

Ruling of the Court

We deny the motion for reconsideration of the petitioners in G.R. No. 209442, and partially grant
the motion for reconsideration of the respondents.

The procedural challenges raised by the respondents, being a mere rehash of their earlier
arguments herein, are dismissed for being already passed upon in the assailed decision.

As to the substantive challenges, the Court discerns that the grounds are also reiterations of the
arguments that were already thoroughly discussed and passed upon in the assailed decision.
However, certain declarations in our July 1, 2014 Decision are modified in order to clarify
certain matters and dispel further uncertainty.

1.

The Court’s power of judicial review

The respondents argue that the Executive has not violated the GAA because savings as a
conceptis an ordinary species of interpretation that calls for legislative, instead of judicial,
determination.11

This argument cannot stand.

The consolidated petitions distinctly raised the question of the constitutionality of the acts and
practices under the DAP, particularly their non-conformity with Section 25(5), Article VI of the
Constitution and the principles of separation of power and equal protection. Hence, the matter is
still entirely within the Court’s competence, and its determination does not pertain to Congress to
the exclusion of the Court. Indeed, the interpretation of the GAA and its definition of savings is a
foremost judicial function. This is because the power of judicial review vested in the Court is
exclusive. As clarified in Endencia and Jugo v. David:12

Under our system of constitutional government, the Legislative department is assigned the power
to make and enact laws. The Executive department is charged with the execution of carrying out
of the provisions of said laws. But the interpretation and application of said laws belong
exclusively to the Judicial department. And this authority to interpret and apply the laws extends
to the Constitution. Before the courts can determine whether a law is constitutional or not, it will
have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion
of the Constitution in order to decide whether there is a conflict between the two, because if there
is, then the law will have to give way and has to be declared invalid and unconstitutional.

xxxx

We have already said that the Legislature under our form of government is assigned the task and
the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in
judicial processes and court decisions. Under such a system, a final court determination of a case
based on a judicial interpretation of the law of the Constitution may be undermined or even
annulled by a subsequent and different interpretation of the law or of the Constitution by the
Legislative department. That would be neither wise nor desirable, besides being clearly violative
of the fundamental, principles of our constitutional system of government, particularly those
governing the separation of powers.13

The respondents cannot also ignore the glaring fact that the petitions primarily and significantly
alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP.
The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed
power of judicial review as mandated by the Constitution.

2.

Strict construction on the accumulation and utilization of savings

The decision of the Court has underscored that the exercise of the power to augment shall be
strictly construed by virtue of its being an exception to the general rule that the funding of PAPs
shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their
utilization and their management will also be strictly construed against expanding the scope of
the power to augment.15 Such a strict interpretation is essential in order to keep the Executive and
other budget implementors within the limits of their prerogatives during budget execution, and to
prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the
perceived beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an
effective tool of stimulating the national economy, the acts and practices under the DAP and the
relevant provisions of NBC No. 541 cited in the Decision should remain illegal and
unconstitutional as long as the funds used to finance the projects mentioned therein are sourced
from savings that deviated from the relevant provisions of the GAA, as well as the limitation on
the power to augment under Section 25(5), Article VI of the Constitution. In a society governed
by laws, even the best intentions must come within the parameters defined and set by the
Constitution and the law. Laudable purposes must be carried out through legal methods.17

Respondents contend, however, that withdrawn unobligated allotments and unreleased

appropriations under the DAP are savings that may be used for augmentation, and that the
withdrawal of unobligated allotments were made pursuant to Section 38 Chapter 5, Book VI of
the Administrative Code;18 that Section 38 and Section 39, Chapter 5, Book VI of the
Administrative Code are consistent with Section 25(5), Article VI of the Constitution, which,
taken together, constitute "a framework for which economic managers of the nation may pull
various levers in the form of authorization from Congress to efficiently steer the economy
towards the specific and general purposes of the GAA;"19 and that the President’s augmentation
of deficient items is in accordance with the standing authority issued by Congress through
Section 39.

Section 25(5), Article VI of the Constitution states:

Section 25. x x x x x x x

5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.

xxxx

Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:

Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise provided in the

General Appropriations Act and whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used for permanent
officials and employees.

Section 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise

provided in the General Appropriations Act, any savings in the regular appropriations authorized
in the General Appropriations Act for programs and projects of any department, office or agency,
may, with the approval of the President, be used to cover a deficit in any other item of the regular
appropriations: Provided, that the creation of new positions or increase of salaries shall not be
allowed to be funded from budgetary savings except when specifically authorized by law:
Provided, further, that whenever authorized positions are transferred from one program or project
to another within the same department, office or agency, the corresponding amounts appropriated
for personal services are also deemed transferred, without, however increasing the total outlay
for personal services of the department, office or agency concerned. (Bold underscoring supplied
for emphasis)

In the Decision, we said that:

Unobligated allotments, on the other hand, were encompassed by the first part of the definition
of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings without first
determining whether any of the three instances existed. This signified that the DBM’s
withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.

xxxx

The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to
justify the withdrawal of unobligated allotments. But the provision authorized only the
suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to
wit:

xxxx

Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38,
supra, but instead transferred the funds to other PAPs.20

We now clarify.

Section 38 refers to the authority of the President "to suspend or otherwise stop further
expenditure of funds allotted for any agency, or any other expenditure authorized in the General
Appropriations Act." When the President suspends or stops expenditure of funds, savings are not
automatically generated until it has been established that such funds or appropriations are free
from any obligation or encumbrance, and that the work, activity or purpose for which the
appropriation is authorized has been completed, discontinued or abandoned.

It is necessary to reiterate that under Section 5.7 of NBC No. 541, the withdrawn unobligated
allotments may be:

5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from
which the allotments were withdrawn;

5.7.2 Realigned to cover additional funding for other existing programs and projects of the
agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority
programs and projects not considered in the 2012 budget but expected to be started or
implemented during the current year.

Although the withdrawal of unobligated allotments may have effectively resulted in the
suspension or stoppage of expenditures through the issuance of negative Special Allotment
Release Orders (SARO), the reissuance of withdrawn allotments to the original programs and
projects is a clear indication that the program or project from which the allotments were
withdrawn has not been discontinued or abandoned. Consequently, as we have pointed out in the
Decision, "the purpose for which the withdrawn funds had been appropriated was not yet
fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings
impossible."21 In this regard, the withdrawal and transfer of unobligated allotments remain
unconstitutional. But then, whether the withdrawn allotments have actually been reissued to their
original programs or projects is a factual matter determinable by the proper tribunal.

Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which shortened the
availability of appropriations for MOOE and capital outlays, and those which were transferred to
PAPs that were not determined to be deficient, are still constitutionally infirm and invalid.

At this point, it is likewise important to underscore that the reversion to the General Fund of
unexpended balances of appropriations – savings included – pursuant to Section 28 Chapter IV,
Book VI of the Administrative Code22does not apply to the Constitutional Fiscal Autonomy
Group (CFAG), which include the Judiciary, Civil Service Commission, Commission on Audit,
Commission on Elections, Commission on Human Rights, and the Office of the Ombudsman.
The reason for this is that the fiscal autonomy enjoyed by the CFAG –

x x x contemplates a guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and authority to levy,
assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by
law for compensation and pay plans of the government and allocate and disburse such sums as
may be provided by law or prescribed by them in the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to
Congress without even informing us, the autonomy given by the Constitution becomes an empty
and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based. x x x23
On the other hand, Section 39 is evidently in conflict with the plain text of Section 25(5), Article
VI of the Constitution because it allows the President to approve the use of any savings in the
regular appropriations authorized in the GAA for programs and projects of any department,
office or agency to cover a deficit in any other item of the regular appropriations. As such,
Section 39 violates the mandate of Section 25(5) because the latter expressly limits the authority
of the President to augment an item in the GAA to only those in his own Department out of the
savings in other items of his own Department’s appropriations. Accordingly, Section 39 cannot
serve as a valid authority to justify cross-border transfers under the DAP. Augmentations under
the DAP which are made by the Executive within its department shall, however, remain valid so
long as the requisites under Section 25(5) are complied with.

In this connection, the respondents must always be reminded that the Constitution is the basic
law to which all laws must conform. No act that conflicts with the Constitution can be valid.24 In
Mutuc v. Commission on Elections,25therefore, we have emphasized the importance of
recognizing and bowing to the supremacy of the Constitution:

x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary,
is a postulate of our system of government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with which it is [sic] entrusted have
no choice but to yield obedience to its commands. Whatever limits it imposes must be observed.
Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the
fundamental law. Even its power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary of this basic principle that
the Constitution is paramount. It overrides any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the supreme law.

Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: – The role of
the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers
of government are established, limited and defined, and by which these powers are distributed
among the several departments. The Constitution is the basic and paramount law to which all
other laws must conform and to which all persons, including the highest officials of the land,
must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of
time. It cannot be simply made to sway and accommodate the call of situations and much more
tailor itself to the whims and caprices of government and the people who run it.27

3.

The power to augment cannot be used to fund non-existent provisions in the GAA

The respondents posit that the Court has erroneously invalidated all the DAP-funded projects by
overlooking the difference between an item and an allotment class, and by concluding that they
do not have appropriation cover; and that such error may induce Congress and the Executive
(through the DBM) to ensure that all items should have at least ₱1 funding in order to allow
augmentation by the President.28

At the outset, we allay the respondents’ apprehension regarding the validity of the DAP funded
projects. It is to be emphatically indicated that the Decision did not declare the en masse
invalidation of the 116 DAP-funded projects. To be sure, the Court recognized the encouraging
effects of the DAP on the country’s economy,29 and acknowledged its laudable purposes, most
especially those directed towards infrastructure development and efficient delivery of basic
social services.30 It bears repeating that the DAP is a policy instrument that the Executive, by its
own prerogative, may utilize to spur economic growth and development.

Nonetheless, the Decision did find doubtful those projects that appeared to have no appropriation
cover under the relevant GAAs on the basis that: (1) the DAP funded projects that originally did
not contain any appropriation for some of the expense categories (personnel, MOOE and capital
outlay); and (2) the appropriation code and the particulars appearing in the SARO did not
correspond with the program specified in the GAA. The respondents assert, however, that there
is no constitutional requirement for Congress to create allotment classes within an item. What is
required is for Congress to create items to comply with the line-item veto of the President.31

After a careful reexamination of existing laws and jurisprudence, we find merit in the
respondents’ argument.

Indeed, Section 25(5) of the 1987 Constitution mentions of the term item that may be the object
of augmentation by the President, the Senate President, the Speaker of the House, the Chief
Justice, and the heads of the Constitutional Commissions. In Belgica v. Ochoa, 32 we said that an
item that is the distinct and several part of the appropriation bill, in line with the item-veto power
of the President, must contain "specific appropriations of money" and not be only general
provisions, thus:

For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations,
pertains to "the particulars, the details, the distinct and severable parts of the appropriation or of
the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands, the US
Supreme Court characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may
be able to exercise his power of item veto, must contain "specific appropriations of money" and
notonly "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized
by singular correspondence – meaning an allocation of a specified singular amount for a
specified singular purpose, otherwise known as a "line-item." This treatment not only allows the
item to be consistent with its definition as a "specific appropriation of money" but also ensures
that the President may discernibly veto the same. Based on the foregoing formulation, the
existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which
state a specified amount for a specific purpose, would then be considered as "line-item"
appropriations which are rightfully subject to item veto. Likewise, it must be observed that an
appropriation may be validly apportioned into component percentages or values; however, it is
crucial that each percentage or value must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly
pointed out, a valid appropriation may even have several related purposes that are by accounting
and budgeting practice considered as one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed sufficiently specific for the
exercise of the President‘s item veto power. Finally, special purpose funds and discretionary
funds would equally square with the constitutional mechanism of item-veto for as long as they
follow the rule on singular correspondence as herein discussed. x x x (Emphasis supplied)33

Accordingly, the item referred to by Section 25(5) of the Constitution is the last and indivisible
purpose of a program in the appropriation law, which is distinct from the expense category or
allotment class. There is no specificity, indeed, either in the Constitution or in the relevant GAAs
that the object of augmentation should be the expense category or allotment class. In the same
vein, the President cannot exercise his veto power over an expense category; he may only veto
the item to which that expense category belongs to.

Further, in Nazareth v. Villar,34 we clarified that there must be an existing item, project or
activity, purpose or object of expenditure with an appropriation to which savings may be
transferred for the purpose of augmentation. Accordingly, so long as there is an item in the GAA
for which Congress had set aside a specified amount of public fund, savings may be transferred
thereto for augmentation purposes. This interpretation is consistent not only with the
Constitution and the GAAs, but also with the degree of flexibility allowed to the Executive
during budget execution in responding to unforeseeable contingencies.

Nonetheless, this modified interpretation does not take away the cave at that only DAP projects
found in the appropriate GAAs may be the subject of augmentation by legally accumulated
savings. Whether or not the 116 DAP-funded projects had appropriation cover and were validly
augmented require factual determination that is not within the scope of the present consolidated
petitions under Rule 65.

4.

Cross-border transfers are constitutionally impermissible

The respondents assail the pronouncement of unconstitutionality of cross-border transfers made

by the President. They submit that Section 25(5), Article VI of the Constitution prohibits only
the transfer of appropriation, not savings. They relate that cross-border transfers have been the
practice in the past, being consistent with the President’s role as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however, the Court stands by its
pronouncement, and will not brook any strained interpretations.

5.

Unprogrammed funds may only be released upon proof that the total revenues exceeded the
target

Based on the 2011, 2012 and 2013 GAAs, the respondents contend that each source of revenue
in the budget proposal must exceed the respective target to authorize release of unprogrammed
funds. Accordingly, the Court’s ruling thereon nullified the intention of the authors of the
unprogrammed fund, and renders useless the special provisions in the relevant GAAs.36

The respondents’ contentions are without merit.

To recall, the respondents justified the use of unprogrammed funds by submitting certifications
from the Bureau of Treasury and the Department of Finance (DOF) regarding the dividends
derived from the shares of stock held by the Government in government-owned and controlled
corporations.37 In the decision, the Court has held that the requirement under the relevant GAAs
should be construed in light of the purpose for which the unprogrammed funds were
denominated as "standby appropriations." Hence, revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. We
have even cautioned that the release of unprogrammed funds based on the respondents’ position
could be unsound fiscal management for disregarding the budget plan and fostering budget
deficits, contrary to the Government’s surplus budget policy.38

While we maintain the position that aggregate revenue collection must first exceed aggregate
revenue target as a pre-requisite to the use of unprogrammed funds, we clarify the respondents’
notion that the release of unprogrammed funds may only occur at the end of the fiscal year.

There must be consistent monitoring as a component of the budget accountability phase of every
agency’s performance in terms of the agency’s budget utilization as provided in Book VI,
Chapter 6, Section 51 and Section 52 of the Administrative Code of 1987,which state:

SECTION 51. Evaluation of Agency Performance.—The President, through the Secretary shall
evaluate on a continuing basis the quantitative and qualitative measures of agency performance
as reflected in the units of work measurement and other indicators of agency performance,
including the standard and actual costs per unit of work.

SECTION 52. Budget Monitoring and Information System.—The Secretary of Budget shall
determine accounting and other items of information, financial or otherwise, needed to monitor
budget performance and to assess effectiveness of agencies’ operations and shall prescribe the
forms, schedule of submission, and other components of reporting systems, including the
maintenance of subsidiary and other records which will enable agencies to accomplish and
submit said information requirements: Provided, that the Commission on Audit shall, in
coordination with the Secretary of Budget, issue rules and regulations that may be applicable
when the reporting requirements affect accounting functions of agencies: Provided, further, that
the applicable rules and regulations shall be issued by the Commission on Audit within a period
of thirty (30) days after the Department of Budget and Management prescribes the reporting
requirements.

Pursuant to the foregoing, the Department of Budget and Management (DBM) and the
Commission on Audit (COA) require agencies under various joint circulars to submit budget and
financial accountability reports (BFAR) on a regular basis,39 one of which is the Quarterly Report
of Income or Quarterly Report of Revenue and Other Receipts.40 On the other hand, as Justice
Carpio points out in his Separate Opinion, the Development Budget Coordination Committee
(DBCC) sets quarterly revenue targets for aspecific fiscal year.41 Since information on both
actual revenue collections and targets are made available every quarter, or at such time as the
DBM may prescribe, actual revenue surplus may be determined accordingly and eleases from the
unprogrammed fund may take place even prior to the end of the fiscal year.42

In fact, the eleventh special provision for unprogrammed funds in the 2011 GAA requires the
DBM to submit quarterly reports stating the details of the use and releases from the
unprogrammed funds, viz:

11. Reportorial Requirement. The DBM shall submit to the House Committee on Appropriations
and the Senate Committee on Finance separate quarterly reports stating the releases from the
Unprogrammed Fund, the amounts released and purposes thereof, and the recipient departments,
bureaus, agencies or offices, GOCCs and GFIs, including the authority under which the funds are
released under Special Provision No. 1 of the Unprogrammed Fund.

Similar provisions are contained in the 2012 and 2013 GAAs.43

However, the Court’s construction of the provision on unprogrammed funds is a statutory, not a
constitutional, interpretation of an ambiguous phrase. Thus, the construction should be given
prospective effect.44

6.

The presumption of good faith stands despite the obiter pronouncement

The remaining concern involves the application of the operative fact doctrine.

The respondents decry the misapplication of the operative fact doctrine, stating:

110. The doctrine of operative fact has nothing to do with the potential liability of persons who
acted pursuant to a then-constitutional statute, order, or practice. They are presumed to have
acted in good faith and the court cannot load the dice, so to speak, by disabling possible defenses
in potential suits against so-called "authors, proponents and implementors." The mere
nullification are still deemed valid on the theory that judicial nullification is a contingent or
unforeseen event.
111. The cases before us are about the statutory and constitutional interpretations of so-called
acts and practices under a government program, DAP. These are not civil, administrative, or
criminal actions against the public officials responsible for DAP, and any statement about bad
faith may be unfairly and maliciously exploited for political ends. At the same time, any negation
of the presumption of good faith, which is the unfortunate implication of paragraphs 3 and 4 of
page 90 of the Decision, violates the constitutional presumption of innocence, and is inconsistent
with the Honorable Court’s recognition that "the implementation of the DAP yielded undeniably
positive results that enhanced the economic welfare of the country."

112. The policy behind the operative fact doctrine is consistent with the idea that regardless of
the nullification of certain acts and practices under the DAP and/or NBC No. 541, it does not
operate to impute bad faith to authors, proponents and implementors who continue to enjoy the
presumption of innocence and regularity in the performance of official functions and duties.
Good faith is presumed, whereas bad faith requires the existence of facts. To hold otherwise
would send a chilling effect to all public officers whether of minimal or significant discretion,
the result of which would be a dangerous paralysis of bureaucratic activity.45 (Emphasis
supplied)

In the speech he delivered on July 14, 2014, President Aquino III also expressed the view that in
applying the doctrine of operative fact, the Court has already presumed the absence of good faith
on the part of the authors, proponents and implementors of the DAP, so that they would have to
prove good faith during trial.46

Hence, in their Motion for Reconsideration, the respondents now urge that the Court should
extend the presumption of good faith in favor of the President and his officials who co-authored,
proposed or implemented the DAP.47

The paragraphs 3 and 4 of page 90 of the Decision alluded to by the respondents read:

Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative
fact does not always apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where the nullification of the effects
of what used to be a valid law would result in inequity and injustice; but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective should apply.

In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the
PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity
of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper tribunals determining their
criminal, civil, administrative and other liabilities.48 (Bold underscoring is supplied)

The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the
presumption of good faith nor imputed bad faith to the authors, proponents and implementors of
the DAP. The contrary is true, because the Court has still presumed their good faith by pointing
out that "the doctrine of operative fact xxx cannot apply to the authors, proponents and
implementors of the DAP, unless there are concrete findings of good faith in their favor by the
proper tribunals determining their criminal, civil, administrative and other liabilities." Note that
the proper tribunals can make "concrete findings of good faith in their favor" only after a full
hearing of all the parties in any given case, and such a hearing can begin to proceed only after
according all the presumptions, particularly that of good faith, by initially requiring the
complainants, plaintiffs or accusers to first establish their complaints or charges before the
respondent authors, proponents and implementors of the DAP.

It is equally important to stress that the ascertainment of good faith, or the lack of it, and the
determination of whether or not due diligence and prudence were exercised, are questions of
fact.49 The want of good faith is thus better determined by tribunals other than this Court, which
is not a trier of facts.50

For sure, the Court cannot jettison the presumption of good faith in this or in any other
case.1âwphi1 The presumption is a matter of law. It has had a long history. Indeed, good faith
has long been established as a legal principle even in the heydays of the Roman Empire.51In
Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the
presumption of good faith, thus:

Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations
of the Civil Code directs every person, inter alia, to observe good faith which springs from the
fountain of good conscience. Specifically, a public officer is presumed to have acted in good
faith in the performance of his duties. Mistakes committed by a public officer are not actionable
absent any clear showing that they were motivated by malice or gross negligence amounting to
bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be
some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a
sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive design or some motive of self-
interest or ill will for ulterior purposes.

The law also requires that the public officer’s action caused undue injury to any party, including
the government, or gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions. x x x

The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54

We do not doubt the existence of the presumptions of "good faith" or "regular performance of
official duty", yet these presumptions are disputable and may be contradicted and overcome by
other evidence. Many civil actions are oriented towards overcoming any number of these
presumptions, and a cause of action can certainly be geared towards such effect. The very
purpose of trial is to allow a party to present evidence to overcome the disputable presumptions
involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived
indisputability of the presumptions, the judicial exercise would be relegated to a mere
ascertainment of what presumptions apply in a given case, nothing more. Consequently, the
entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down
the legal presumptions.
Relevantly, the authors, proponents and implementors of the DAP, being public officers, further
enjoy the presumption of regularity in the performance of their functions. This presumption is
necessary because they are clothed with some part of the sovereignty of the State, and because
they act in the interest of the public as required by law.55 However, the presumption may be
disputed.56

At any rate, the Court has agreed during its deliberations to extend to the proponents and
implementors of the DAP the benefit of the doctrine of operative fact. This is because they had
nothing to do at all with the adoption of the invalid acts and practices.

7.

The PAPs under the DAP remain effective under the operative fact doctrine

As a general rule, the nullification of an unconstitutional law or act carries with it the illegality of
its effects. However, in cases where nullification of the effects will result in inequity and
injustice, the operative fact doctrine may apply.57 In so ruling, the Court has essentially
recognized the impact on the beneficiaries and the country as a whole if its ruling would pave the
way for the nullification of the ₱144.378 Billions58 worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying
these projects by virtue alone of the invalidation of certain acts and practices under the DAP, the
Court has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine. For this reason, we cannot sustain the Motion for Partial Reconsideration of the
petitioners in G.R. No. 209442.

IN VIEW OF THE FOREGOING, and SUBJECT TO THE FOREGOING CLARIFICATIONS,

the Court PARTIALLY GRANTS the Motion for Reconsideration filed by the respondents, and
DENIES the Motion for Partial Reconsideration filed by the petitioners in G.R. No. 209442 for
lack of merit.

ACCORDINGLY, the dispositive portion of the Decision promulgated on July 1, 2014 is hereby
MODIFIED as follows:

WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition;
and DECLARES the following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year without complying with the statutory definition
of savings contained in the General Appropriations Acts; and

(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue targets
for non-compliance with the conditions provided in the relevant General Appropriations Acts.

SO ORDERED.

LUACAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

I join the concurring & dissenting

See separate opinion
opinion of J. Del Castillo
ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice

No part (Out due to close relation with

J Brion left his vote; see his Separate
one of the counsels of a party
Opinion (Qualified
TERESITA J. LEONARDO-DE
concurrence)ARTURO D. BRION**
CASTRO*
Associate Justice
Associate Justice

See concurring and dissenting opinion

DIOSDADO M. PERALTA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

See concurring opinion

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

FRANCIS H. JARDELEZA***
Associate Justice

CERTIFICATION
 I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

* No part

** On leave

*** No part
1
 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935 and 193036,
December 7, 2010, 637 SCRA 78, 177.
2
 Rollo (G.R. No. 209287), pp. 1431-1482.
3
 Id. at 1496-1520.
4
 Id. at 1135-1241.
5
 Id. at 1434-1435.
6
 Id
7
 Id. at 1435-1438.
8
 Id. 1444-1449.
9
 Id. at 1432.
10
 Id. at 1496.
11
 Id. at 1435.
12
 Nos. L-6355-56, 93 Phil. 696 (1953).
13
 Id. at 700-702 (bold underscoring is supplied for emphasis).
14
 Rollo (G.R. No. 209287), pp. 1203-1204.
15
 Id. at 1208.
16
 Id.
17
 Brillantes, Jr. v. Commission on Elections, G.R. No. 163193, June 15, 2004, 432
SCRA 269, 307.
18
 Supra note 7, at 1448.
19
 Id. at 1449.
20
 Decision, pp. 60-67.
21
 Id. at 62.
22
 Id. at 67.
23
 Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133.
24
 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and
161658, November 3, 2008, 570 SCRA 410, 422-423.
25
 No. L-32717, November 26, 1970, 36 SCRA 228, 234-235.
26
 G.R. No. 192935 and 193036, December 7, 2010, 637 SCRA 78.
27
 Id. at 137-138.
28
 Supra note 7, at 1450-1451.
29
 Decision, p. 36.
30
 Id at 90.
31
 Respondents’ Motion for Reconsideration, p. 21.
32
 G.R. No. 208566, November 19, 2013, 710 SCRA 1.
33
 Id. at 126-127.
34
 G.R. No. 188635, January 29, 2013, 689 SCRA 385.
35
 Supra note 7, at 1455-1459.
36
 Id. at 1459-1465.
37
 Rollo (G.R. No. 209155), pp. 327, 337-339.
38
 Supra note 14, at 1231-1232.
39
 http://budgetngbayan.com/budget-101/budget-accountability/#BAR (Visited on
January 28, 2015).
40
 See also the DBM and COA’s Joint Circular No. 2013-1, March 15, 2013 and Joint
Circular No. 2014-1, July 2, 2014.
41
 J. Carpio, Separate Opinion, p. 11.
42
 In this regard, the ninth and tenth special provisions for unprogrammed funds in the
2011 GAA also provide the following: 9. Use of Income. In case of deficiency in the
appropriations for the following business-type activities, departments, bureaus, offices
and agencies enumerated hereunder and other agencies as may be determined by the
Permanent Committee are hereby authorized to use their respective income collected
during the year. Said income shall be deposited with the National Treasury, chargeable
against Purpose 4 - General Fund Adjustments, to be used exclusively for the purposes
indicated herein or such other purposes authorized by the Permanent Committee, as may
be required until the end of the year, subject to the submission of a Special Budget
pursuant to Section 35, Chapter 5, Book VI of E. O. No. 292, s. 1987: x x x x
Implementation of this section shall be subject to guidelines to be issued by the DBM. 10.
Use of Excess Income. Agencies collecting fees and charges as shown in the FY 2011
Budget of Expenditures and Sources of Financing (BESF) may be allowed to use their
income realized and deposited with the National Treasury, in excess of the collection
targets presented in the BESF, chargeable against Purpose 4 - General Fund Adjustments,
to augment their respective current appropriations, subject to the submission of a Special
Budget pursuant to Section 35, Chapter 5, Book VI of E.O. No. 292: PROVIDED, That
said income shall not be used to augment Personal Services appropriations including
payment of discretionary and representation expenses. Implementation of this section
shall be subject to guidelines jointly issued by the DBM and DOFThe 2012 and 2013
GAAs also contain similar provisions.
43
 2012 GAA provides: 8. Reportorial Requirement. The DBM shall submit, either in
printed form or by way of electronic document, to the House Committee on
Appropriations and the Senate Committee on Finance separate quarterly reports stating
the releases from the Unprogrammed Fund, the amounts released and the purposes
thereof, and the recipient departments, bureaus, agencies or offices, including GOCCs
and GFIs, as well as the authority under which the funds are released under Special
Provision No. 1 of the Unprogrammed Fund. 2013 GAA reads: 8. Reportorial
Requirement. The DBM shall submit, either in printed form or by way of electronic
document, to the House Committee on Appropriations and the Senate Committee on
Finance separate quarterly reports stating the releases from the Unprogrammed Fund, the
amounts released and the purposes thereof, and the recipient departments, bureaus, and
offices, including GOCCs and GFIs, as well as the authority under which the funds are
released under Special Provision No. 1 of the Unprogrammed Fund.
44
 Commission of Internal Revenue v. San Roque Power Corporation, G.R. Nos. 187485,
196113 and 197156, 690 SCRA 336.
45
 Supra note 7, at 1466-1467.
46
 http://www.gov.ph/2014/07/14/english-national-address-of-president-aquino-on-the-
supreme-courts-decision-on-dap/ Last visited on November 13, 2014.
47
 Supra note 7, at 1432.
48
 Supra note 14, at 1239.
49
 Philippine National Bank v. Heirs of Estanislao Militar, G.R. No. 164801 and 165165,
June 30, 2006, 494 SCRA 308, 319.
50
 Id.
51
 See Good Faith in European Contract Law, R. Zimmermann, S. Whittaker, eds.,
Cambridge University Press, 2000, p. 16;
http://catdir.loc.gov/catdir/samples/cam032/99037679.pdf (Visited on November 24,
2014).
52
 G.R. No. 160772, July 13, 2009, 592 SCRA 394.
53
 G.R. Nos. 167006-07, 14 August 2007, 530 SCRA 142.
54
 G.R. No. 142362, May 3, 2006, 489 SCRA 22.
55
 Words And Phrases, Vol. 35, p. 356, citing Bender v. Cushing, 14 Ohio Dec. 65, 70.
56
 Section 3(l), Rule 131, Rules of Court.
57
 Id.
58
 http://www.gov.ph/2014/07/24/dap-presentation-of-secretary-abad-to-the-senate-of-
the-philippines/(November 27, 2014)
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78780               July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO,

JR., petitioners, 
vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER,
SUPREME COURT OF THE PHILIPPINES, respondents.

RESOLUTION

MELENCIO-HERRERA, J.:
Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53,
respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in
Manila, seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal
Revenue and the Financial Officer of the Supreme Court, from making any deduction of
withholding taxes from their salaries.

In a nutshell, they submit that "any tax withheld from their emoluments or compensation as
judicial officers constitutes a decrease or diminution of their salaries, contrary to the provision of
Section 10, Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in
office, their salary shall not be decreased," even as it is anathema to the Ideal of an independent
judiciary envisioned in and by said Constitution."

It may be pointed out that, early on, the Court had dealt with the matter administratively in
response to representations that the Court direct its Finance Officer to discontinue the
withholding of taxes from salaries of members of the Bench. Thus, on June 4, 1987, the Court en
banc had reaffirmed the Chief Justice's directive as follows:

RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief
Justice's previous and standing directive to the Fiscal Management and Budget Office of
this Court to continue with the deduction of the withholding taxes from the salaries of the
Justices of the Supreme Court as well as from the salaries of all other members of the
judiciary.

That should have resolved the question. However, with the filing of this petition, the Court has
deemed it best to settle the legal issue raised through this judicial pronouncement. As will be
shown hereinafter, the clear intent of the Constitutional Commission was to delete the proposed
express grant of exemption from payment of income tax to members of the Judiciary, so as to
"give substance to equality among the three branches of Government" in the words of
Commissioner Rigos. In the course of the deliberations, it was further expressly made clear,
specially with regard to Commissioner Joaquin F. Bernas' accepted amendment to the
amendment of Commissioner Rigos, that the salaries of members of the Judiciary would be
subject to the general income tax applied to all taxpayers.

This intent was somehow and inadvertently not clearly set forth in the final text of the
Constitution as approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may
have been obscured by the failure to include in the General Provisions a proscription against
exemption of any public officer or employee, including constitutional officers, from payment of
income tax, the Court since then has authorized the continuation of the deduction of the
withholding tax from the salaries of the members of the Supreme Court, as well as from the
salaries of all other members of the Judiciary. The Court hereby makes of record that it had then
discarded the ruling in Perfecto vs. Meer and Endencia vs. David, infra, that declared the salaries
of members of the Judiciary exempt from payment of the income tax and considered such
payment as a diminution of their salaries during their continuance in office. The Court hereby
reiterates that the salaries of Justices and Judges are properly subject to a general income tax law
applicable to all income earners and that the payment of such income tax by Justices and Judges
does not fall within the constitutional protection against decrease of their salaries during their
continuance in office.

A comparison of the Constitutional provisions involved is called for. The 1935 Constitution
provided:

... (The members of the Supreme Court and all judges of inferior courts) shall receive
such compensation as may be fixed by law, which shall not be diminished during their
continuance in office ... 1 (Emphasis supplied).

Under the 1973 Constitution, the same provision read:

The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of
judges of inferior courts shall be fixed by law, which shall not be decreased during their
continuance in office. ... 2 (Emphasis ours).

And in respect of income tax exemption, another provision in the same 1973 Constitution
specifically stipulated:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their
salary shall not be decreased.  4(Emphasis supplied).

The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the
original concept of "non-diminution "of salaries of judicial officers.

The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII,
negate such contention.

The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme
Court and of judges of the lower courts shall be fixed by law. During their continuance in
office, their salary shall not be diminished nor subjected to income tax. Until the
National Assembly shall provide otherwise, the Chief Justice shall receive an annual
salary of _____________ and each Associate Justice ______________ pesos. 5 (Emphasis
ours)

During the debates on the draft Article (Committee Report No. 18), two Commissioners
presented their objections to the provision on tax exemption, thus:
 MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices,
does this not violate the principle of the uniformity of taxation and the principle of equal
protection of the law? After all, tax is levied not on the salary but on the combined
income, such that when the judge receives a salary and it is comingled with the other
income, we tax the income, not the salary. Why do we have to give special privileges to
the salary of justices?

MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or

decrease of their salary during their term. This is an indirect way of decreasing their
salary and affecting the independence of the judges.

MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the
special privilege on taxation might, in effect, be a violation of the principle of uniformity
in taxation and the equal protection clause. 6

x x x           x x x          x x x

MR. OPLE. x x x

Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto
Concepcion, for whom we have the highest respect, to surround the Supreme Court and
the judicial system as a whole with the whole armor of defense against the executive and
legislative invasion of their independence. But in so doing, some of the citizens outside,
especially the humble government employees, might say that in trying to erect a bastion
of justice, we might end up with the fortress of privileges, an island of extra territoriality
under the Republic of the Philippines, because a good number of powers and rights
accorded to the Judiciary here may not be enjoyed in the remotest degree by other
employees of the government.

An example is the exception from income tax, which is a kind of economic immunity,
which is, of course, denied to the entire executive department and the legislative. 7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner
Cirilo A. Rigos proposed that the term "diminished" be changed to "decreased" and that the
words "nor subjected to income tax" be deleted so as to "give substance to equality among the
three branches in the government.

Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the
original draft and referred to the ruling of this Court in Perfecto vs. Meer  8 that "the
independence of the judges is of far greater importance than any revenue that could come from
taxing their salaries." Commissioner Rigos then moved that the matter be put to a vote.
Commissioner Joaquin G. Bernas stood up "in support of an amendment to the amendment with
the request for a modification of the amendment," as follows:

FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it
is not enough to drop the phrase "shall not be subjected to income tax," because if that is
 all that the Gentleman will do, then he will just fall back on the decision in Perfecto vs.
Meer and in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[
which excludes them from income tax, but rather I would propose that the statement will
read: "During their continuance in office, their salary shall not be diminished BUT MAY
BE SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say
that the argument seems to be that the justice and judges should not be subjected to
income tax because they already gave up the income from their practice. That is true also
of Cabinet members and all other employees. And I know right now, for instance, there
are many people who have accepted employment in the government involving a
reduction of income and yet are still subject to income tax. So, they are not the only
citizens whose income is reduced by accepting service in government.

Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner

Rustico F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption,
Commissioner Bernas announced:

During the suspension, we came to an understanding with the original proponent,

Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During their
continuance in office, their salary shall not be DECREASED."But this is on the
understanding that there will be a provision in the Constitution similar to Section 6 of
Article XV, the General Provisions of the 1973 Constitution, which says:

No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax.

So, we put a period (.) after "DECREASED" on the understanding that the salary of
justices is subject to tax.

When queried about the specific Article in the General Provisions on non-exemption from tax of
salaries of public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General
Provisions. But at any rate, when we put a period (.) after "DECREASED," it is on the
understanding that the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply
anymore.

The amendment to the original draft, as discussed and understood, was finally approved without
objection.

THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there
will be a provision under the Article on General Provisions. Could Commissioner
Rosario Braid kindly take note that the salaries of officials of the government including
constitutional officers shall not be exempt from income tax? The amendment proposed
herein and accepted by the Committee now reads as follows: "During their continuance in
office, their salary shall not be DECREASED"; and the phrase "nor subjected to income
tax" is deleted.9
The debates, interpellations and opinions expressed regarding the constitutional provision in
question until it was finally approved by the Commission disclosed that the true intent of the
framers of the 1987 Constitution, in adopting it, was to make the salaries of members of the
Judiciary taxable. The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect.10 The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the framers and of the people in
the adoption of the Constitution.11 it may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.12 1avvphi1

Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is
again reproduced hereunder:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of
judges of lower courts shall be fixed by law. During their continuance in office, their
salary shall not be decreased. (Emphasis supplied).

it is plain that the Constitution authorizes Congress to pass a law fixing another rate of
compensation of Justices and Judges but such rate must be higher than that which they are
receiving at the time of enactment, or if lower, it would be applicable only to those appointed
after its approval. It would be a strained construction to read into the provision an exemption
from taxation in the light of the discussion in the Constitutional Commission.

With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of
income tax upon the salary of judges is a dimunition thereof, and so violates the Constitution"
in Perfecto vs. Meer,13 as affirmed in Endencia vs. David  14 must be declared discarded. The
framers of the fundamental law, as the alter ego of the people, have expressed in clear and
unmistakable terms the meaning and import of Section 10, Article VIII, of the 1987 Constitution
that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the discussions and
deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of
the cost of maintaining the government and should share the burden of general income taxation
equitably.

WHEREFORE, the instant petition for Prohibition is hereby dismissed.

Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.

Footnotes
1 
Section 9,Articie VIII.
2 
Section 10, Article X.
 3 
Section 6, Article XV, General Provisions.
4 
Section 10, Article VIII.
5 
Record of the Constitutional Commission, Vol. I, p. 433.
6 
Record of the Constitutional Commission, p. 460.
7 
Ibid., at page 467,
8 
85 Phil. 552 (1950).
9 
Record of the Constitutional Commission, Vol. 1, p. 506.
10 
Gold Creek Mining Co. vs. Rodriguez, 66 Phil. 259 (1938).
11 
J.M. Tuason & Co., Inc. vs. Land Tenure Administration, No. L-21064, February 18,
1970, 31 SCRA 413.
12 
Tanada, Fernando, Constitution of the Philippines, Fourth Ed., Vol. 1, p. 21.
13 
85 Phil. 552 (1950).
14 
93 Phil. 696 (1953).

EN BANC

G.R. No. 160261             November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, 

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG
PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-
in-intervention, 
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G.
DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention, 
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT
OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO,
JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM
BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA
SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL
DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS
LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO,
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO
PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR.,
EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO
ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH
DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES,
DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE
ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO
MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS,
RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS
LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P.
SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention, 
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES,
AND THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN

MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA,
EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD
SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS,
NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN
VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA
A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE
ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION
LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO
LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C.
DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT
FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

x---------------------------------------------------------x

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, 

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND
ALL MEMBERS, PHILIPPINE SENATE, respondents.

x---------------------------------------------------------x

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE

INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N.
MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE
ENGINEERING PROFESSION, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

x---------------------------------------------------------x

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner, 

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner, 
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE
SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

x---------------------------------------------------------x

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA,

DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V.
DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS,
ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G.
AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE
SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80
HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.

x---------------------------------------------------------x

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner, 

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER
OF THE HOUSE OF REPRESENTATIVES, respondents.

x---------------------------------------------------------x

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner, 
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE
HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES,
REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

x---------------------------------------------------------x

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners, 

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA,
AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT
FRANKLIN DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

x---------------------------------------------------------x

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner, 

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER,

MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A.
MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE
COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION
OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC.
[CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY
THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF
COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC.
[CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST
PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE
VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR
FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent branches
of government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy subject
of the instant petitions – whether the filing of the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar
provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary
nor legally permissible. Both its resolution and protection of the public interest lie in adherence
to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are
to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
 office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power

to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than

once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW

RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION

OF IMPEACHMENT
Section 2. Mode of Initiating PROCEEDINGS AGAINST
Impeachment. – Impeachment THE SAME OFFICIAL
shall be initiated only by a verified
complaint for impeachment filed Section 16. – Impeachment
by any Member of the House of Proceedings Deemed Initiated. –
Representatives or by any citizen In cases where a Member of the
upon a resolution of endorsement House files a verified complaint
by any Member thereof or by a of impeachment or a citizen files
verified complaint or resolution of a verified complaint that is
impeachment filed by at least one- endorsed by a Member of the
third (1/3) of all the Members of House through a resolution of
the House. endorsement against an
impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution
against such official, as the case
may be, is sufficient in substance,
or on the date the House votes to
overturn or affirm the finding of
the said Committee that the
verified complaint and/or
resolution, as the case may be, is
not sufficient in substance.

In cases where a verified

complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
 resolution of impeachment with
the Secretary General.

RULE V Section 17. Bar Against

Initiation Of Impeachment
BAR AGAINST Proceedings. – Within a period
IMPEACHMENT of one (1) year from the date
impeachment proceedings are
Section 14. Scope of Bar. – No deemed initiated as provided in
impeachment proceedings shall be Section 16 hereof, no
initiated against the same official impeachment proceedings, as
more than once within the period such, can be initiated against the
of one (1) year. same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice
on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which
reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by Representatives
Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the
legislative inquiry initiated by above-mentioned House Resolution. This second impeachment
complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least
one-third (1/3) of all the Members of the House of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez
v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that
the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari
and Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court declare
as unconstitutional the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as an
official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from
receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging
that as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the impeachment
trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion was
put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C.
De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government under
the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the
impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the Articles of Impeachment,
which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as
the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:
 Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can
invoke it; on what issues and at what time; and whether it should be exercised by this
Court at this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold
and novel issue of whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the
power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several departments
and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has been
set at rest by popular acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
 unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.24 (Italics in the original; emphasis and
underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights
which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for
a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme
law of the land, the constitution itself is first mentioned; and not the laws of the United
States generally, but those only which shall be made in pursuance of the constitution,
have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28 (Italics in the original; emphasis
supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
 Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.32 (Emphasis and
underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are
mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief
Justice Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.
 Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience

during martial law. As a matter of fact, it has some antecedents in the past, but the role
of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had no
legal defense at all, the solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles concerning particularly the writ of
habeas corpus, that is, the authority of courts to order the release of political detainees,
and other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
 be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails. As
the Constitution is not primarily a lawyer's document, it being essential for the rule of law
to obtain that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common use. What it
says according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the organic
law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the Constitution were guided mainly
by the explanation offered by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of

the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of the instrument.
Sections bearing on a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the Constitution and one section is not
to be allowed to defeat another, if by any reasonable construction, the two can be
made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the

constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its
face." The proper interpretation therefore depends more on how it was understood
by the people adopting it than in the framers's understanding thereof. 46 (Emphasis
and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a

political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of
review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check
and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case
of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave abuse
of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings. While
the U.S. Constitution bestows sole power of impeachment to the House of Representatives
without limitation,54 our Constitution, though vesting in the House of Representatives the
exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise
of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations
include the manner of filing, required vote to impeach, and the one year bar on the impeachment
of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of

the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to it
by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural
matters are subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the
U.P. College of Law is of the same opinion, citing transcendental importance and the well-
entrenched rule exception that, when the real party in interest is unable to vindicate his rights by
seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot
himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties
by reason of the statute or act complained of.77 In fine, when the proceeding involves the
assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal
interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that there
is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned statute
or contract. It is not sufficient that he has merely a general interest common to all members of
the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial
of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in his office.83

While an association has legal personality to represent its members, 84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession  of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned 87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court. 89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and taxpayers, however, their petition will
stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case
of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public. 91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter is
totally eliminated. A party must, at the very least, still plead the existence of such interest, it not
being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege
any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al.  in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to
Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to

join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been complied
with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et
al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated,
allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected
to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice
to clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture." 96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged in
an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned
acts having been carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already promulgated and
enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no
urgent need for this Court to render a decision at this time, it being the final arbiter on questions
of constitutionality anyway. He thus recommends that all remedies in the House and Senate
should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The
dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief
Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with definitiveness
on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as
said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of
the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority  has been delegated to the Legislature or executive branch of the Government."
It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies. 101 Even
in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that
the judiciary is the weakest among the three major branches of the service. Since the legislature
holds the purse and the executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience which, after all,
reflects the will of God, and is the most powerful of all other powers without exception. x x x
And so, with the body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense
at all, the solicitor general set up the defense of political questions and got away with
it. As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. I am sure the
members of the Bar are familiar with this situation. But for the benefit of the Members of
the Commission who are not lawyers, allow me to explain. I will start with a decision of
the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am
not mistaken. Martial law was announced on September 22, although the proclamation
was dated September 21. The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on September 21. So
that when martial law was announced on September 22, the media hardly published
anything about it. In fact, the media could not publish any story not only because our
main writers were already incarcerated, but also because those who succeeded them in
their jobs were under mortal threat of being the object of wrath of the ruling party. The
1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22
had not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to
that 1971 Constitutional Convention, dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to accomplish
for about 14 months. The draft of the 1973 Constitution was presented to the President
around December 1, 1972, whereupon the President issued a decree calling a plebiscite
which suspended the operation of some provisions in the martial law decree which
prohibited discussions, much less public discussions of certain matters of public concern.
The purpose was presumably to allow a free discussion on the draft of the Constitution on
which a plebiscite was to be held sometime in January 1973. If I may use a word famous
by our colleague, Commissioner Ople, during the interregnum, however, the draft of the
Constitution was analyzed and criticized with such a telling effect that Malacañang felt
the danger of its approval. So, the President suspended indefinitely the holding of the
plebiscite and announced that he would consult the people in a referendum to be held
from January 10 to January 15. But the questions to be submitted in the referendum were
not announced until the eve of its scheduled beginning, under the supposed supervision
not of the Commission on Elections, but of what was then designated as "citizens
assemblies or barangays." Thus the barangays came into existence. The questions to be
propounded were released with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in the referendum should be
regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the
Supreme Court praying that the holding of the referendum be suspended. When the
motion was being heard before the Supreme Court, the Minister of Justice delivered to
the Court a proclamation of the President declaring that the new Constitution was already
in force because the overwhelming majority of the votes cast in the referendum favored
the Constitution. Immediately after the departure of the Minister of Justice, I proceeded
to the session room where the case was being heard. I then informed the Court and the
parties the presidential proclamation declaring that the 1973 Constitution had been
ratified by the people and is now in force.
 A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question
and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme
Court were residents of Manila, but none of them had been notified of any referendum in
their respective places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the case.
This is not the only major case in which the plea of "political question" was set up.
There have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a
decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory to human
dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
 function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power
is not vested in the Supreme Court alone but also in other lower courts as may be
created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had abused
its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not
a political question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.
 On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion,

amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker v.
Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor. 114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:
 x x x It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is raised
by the parties and that when it is raised, if the record also presents some other ground
upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case itself.118[Emphasis
supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux  of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required
by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim
to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c)
a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault
on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights must be respected, including
the right to due process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro,
Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4),
Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution
of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution of impeachment" was not
filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2), Article
XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination of
the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him]
to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced the
Tribunal's membership to only its three Justices-Members whose disqualification was not sought,
leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn
of the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
 which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be sought.
Litigants in such situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly
and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain
from participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power.
And if that judge is the one designated by the Constitution to exercise the jurisdiction of
his court, as is the case with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power of the court itself. It
affects the very heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a duty which
it cannot lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its power
of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
 the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a personal
or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from

different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

 2. that rules of constitutional law shall be formulated only as required by the facts of the
case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor
Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
 petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were
not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-
existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches of
the government would behave in a lawless manner and not do their duty under the law to uphold
the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner and risk social upheaval, violence,
chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to
file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the
House of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5,
2003 at which he added that the act of "initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI
(3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments
of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments leading
to the formulation of the articles of impeachment. The beginning or the initiation is the
filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the House reverses a contrary vote of
the Committee. Note that the Rule does not say "impeachment proceedings" are initiated
but rather are "deemed initiated." The language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to postpone it to a time after actual
initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker committee action,
calendaring of report, voting on the report, transmittal referral to the Senate, trial
and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation
starts with the filing of the complaint. And what is actually done on the floor is that
the committee resolution containing the Articles of Impeachment is the one
approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the resolution. So,
on that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The
proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but
the Committee has already decided. Nevertheless, I just want to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings"and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
 line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting
the phrase "to initiate impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the vote of one-third of
the House in a resolution of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under Section 3, paragraph (2),
Article XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,

who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of
several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding
but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the
present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is
contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing
of the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself
affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment
by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of
Article XI since the rules give the term "initiate" a meaning different meaning from filing and
referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court likened
the former members of the Constitutional Convention to actors who are so absorbed in their
emotional roles that intelligent spectators may know more about the real meaning because of the
latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the records
of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as
he stressed that in the Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power
if we assume jurisdiction over he case at bar. Even in the United States, the principle
of separation of power is no longer an impregnable impediment against the interposition
of judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the rules
of its proceedings." It appears that in pursuance of this authority the House had, prior to
that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the presence
of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as
to the validity of this rule, and not what methods the Speaker may of his own motion
resort to for determining the presence of a quorum, nor what matters the Speaker or clerk
may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceedings established by the rule
and the result which is sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no impeachment of the rule
to say that some other way would be better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one has been prescribed and in force for
a length of time. The power to make rules is not one which once exercised is exhausted.
It is a continuous power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of

congressional rules, i.e, whether they are constitutional. Rule XV was examined by
the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically

reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM granted this
enormous power to our courts in view of our experience under martial law where
abusive exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice Roberto
Concepcion, the CONCOM expanded and sharpened the checking powers of the
judiciary vis-à-vis the Executive and the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch or
instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches
of government despite their more democratic character, the President and the legislators
being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973
 Constitutions, this Court approached constitutional violations by initially determining
what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should not
do but what it must do. The Court must discharge this solemn duty by not resuscitating a
past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of
government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the
view of former Senator Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be depreciated by undue
reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of
our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing more.
It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated in the foregoing manner, another may not be filed against the same official within a one
year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that takes
the center stage of our individual and collective consciousness as a people with our characteristic
flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks have proven to
be an exasperating, mentally and emotionally exhausting experience. Both sides have fought
bitterly a dialectical struggle to articulate what they respectively believe to be the correct position
or view on the issues involved. Passions had ran high as demonstrators, whether for or against
the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and
chants to air their voice on the matter. Various sectors of society - from the business, retired
military, to the academe and denominations of faith – offered suggestions for a return to a state
of normalcy in the official relations of the governmental branches affected to obviate any
perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present petitions
were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference
was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and
"judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the
impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full of
all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about
assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in these petitions just because it is
the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law than
anybody else. The law is solicitous of every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted
to no other than the Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this
crucible of a democratic process, if only to discover that it can resolve differences without the
use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October
23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.

Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J.,  concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J.,  will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.

Footnotes
1
 Rollo, G.R. No. 160261 at 180-182; Annex "H."
2
 Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr.
(Rollo, G.R. No. 160261 at 325-363) the pertinent House Resolution is HR No. 260, but
no copy of the same was submitted before this Court.
3
 Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was established "to
help ensure and guarantee the independence of the Judiciary as mandated by the
Constitution and public policy and required by the impartial administration of justice" by
creating a special fund to augment the allowances of the members and personnel of the
Judiciary and to finance the acquisition, maintenance and repair of office equipment and
facilities."
4
 Rollo, G.R. No. 160261 at 120-139; Annex "E."
5
 The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N.
Bellosillo, Reynato S. Puno, Antonio T. Carpio and Renato C. Corona, and was later
amended to include Justices Jose C. Vitug, and Leonardo A. Quisumbing.
6
 Supra note 4 at 123-124.
7
 Rollo, G.R. No. 160403 at 48-53; Annex "A."
8
 http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999
9
 Rollo, G.R. No. 160262 at 8.
10
 Rollo, G.R. No. 160295 at 11.
11
 Rollo, G.R. No. 160262 at 43-84; Annex "B."
12
 Supra note 2.
13
 A perusal of the attachments submitted by the various petitioners reveals the following
signatories to the second impeachment complaint and the accompanying
Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac (principal complainant) 2.
Felix Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio Ledesma,
IV, NPC, Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim
Bernardo-Lokin, Party List-CIBAC 6. Marcelino Libanan, NPC, Lone District of Eastern
Samar, (Chairman, House Committee on Justice) 7. Emmylou Talino-Santos,
Independent, 1st District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st District,
Davao del Sur 9. Sherwin Gatchalian, NPC, 1st District, Valenzuela City 10. Luis
Bersamin, Jr., PDSP-PPC, Lone District of Abra 11. Nerissa Soon-Ruiz Alayon, 6th
District, Cebu 12. Ernesto Nieva, Lakas, 1st District, Manila 13. Edgar R. Erice, Lakas,
2nd District, Kalookan City 14. Ismael Mathay III, Independent, 2nd District, Quezon
City 15. Samuel Dangwa, Reporma, Lone District of Benguet 16. Alfredo Marañon, Jr.,
NPC, 2nd District, Negros Occidental 17. Cecilia Jalosjos-Carreon, Reporma, 1st
District, Zamboanga del Norte 18. Agapito A. Aquino, LDP, 2nd District, Makati City
19. Fausto L. Seachon, Jr., NPC, 3rd District, Masbate 20. Georgilu Yumul-Hermida,
Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson, Lakas, 3rd District,
Negros Occidental 22. Manuel C. Ortega, NPC, 1st District, La Union 23. Uliran Joaquin,
NPC, 1st District, Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi 25.
Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan 26. Claude P. Bautista, NPC, 2nd
District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28.
Zeneida Cruz-Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio, Independent-
LDP, 2nd District, Misamis Oriental 30. Faustino Dy III, NPC-Lakas, 3rd District,
Isabela 31. Agusto Boboy Syjuco, Lakas, 2nd District, Iloilo 32. Rozzano Rufino B.
Biazon, LDP, Lone District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-Lakas,
1st District, Agusan del Norte 34. Eric Singson, LP, 2nd District, Ilocos Sur 35. Jacinto
Paras, Lakas, 1st District, Negros Oriental 36. Jose Solis, Independent, 2nd District,
Sorsogon 37. Renato B. Magtubo, Party List-Partido ng Manggagawa 38. Herminio G.
Teves, Lakas, 3rd District, Negros Oriental 39. Amado T. Espino, Jr., Lakas, 2nd District,
Pangasinan 40. Emilio Macias, NPC, 2nd District, Negros Oriental 41. Arthur Y. Pingoy,
Jr., NPC, 2nd District, South Cotobato 42. Francis Nepomuceno, NPC, 1st District,
Pampanga 43. Conrado M. Estrella III, NPC, 6th District, Pangasinan 44. Elias Bulut, Jr.,
NPC, Lone District of Apayao 45. Jurdin Jesus M. Romualdo, NPC, Lone District of
Camiguin 46. Juan Pablo Bondoc, NPC, 4th District, Pampanga 47. Generoso DC.
Tulagan, NPC, 3rd District, Pangasinan 48. Perpetuo Ylagan, Lakas, Lone District of
Romblon 49. Michael Duavit, NPC, 1st District, Rizal 50. Joseph Ace H. Durano, NPC,
5th District, Cebu 51. Jesli Lapus, NPC, 3rd District, Tarlac 52. Carlos Q. Cojuangco,
NPC, 4th District, Negros Occidental 53. Georgidi B. Aggabao, NPC, 4th District,
Santiago, Isabela 54. Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M. Velarde,
Party List-Buhay 56. Celso L. Lobregat, LDP, Lone District of Zamboanga City 57.
Alipio Cirilo V. Badelles, NPC, 1st District, Lanao del Norte 58. Didagen P. Dilangalen,
Pwersa ng Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2nd
District, Palawan 60. Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene
Antonino-Custodio, NPC, 1st District of South Cotobato & General Santos City 62. Aleta
C. Suarez, LP, 3rd District, Quezon 63. Rodolfo G. Plaza, NPC, Lone District of Agusan
del Sur 64. JV Bautista, Party List-Sanlakas 65. Gregorio Ipong, NPC, 2nd District,
North Cotabato 66. Gilbert C. Remulla, LDP, 2nd District, Cavite 67. Rolex T. Suplico,
LDP, 5th District, Iloilo 68. Celia Layus, NPC, Cagayan 69. Juan Miguel Zubiri, Lakas,
3rd District, Bukidnon 70. Benasing Macarambon Jr,. NPC, 2nd District, Lanao del Sur
71. Josefina Joson, NPC, Lone District of Nueva Ecija 72. Mark Cojuangco, NPC, 5th
District, Pangasinan 73. Mauricio Domogan, Lakas, Lone District of Baguio City 74.
Ronaldo B. Zamora, Pwersa ng Masa, Lone District of San Juan 75. Angelo O. Montilla,
NPC, Lone District of Sultan Kudarat 76. Roseller L. Barinaga, NPC, 2nd District,
Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd District, Surigao del Sur 78. Ruy
Elias Lopez, NPC, 3rd District, Davao City.
14
 Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment
complaints before the House of Representatives against Ombudsman Aniano Desierto.
15
 299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a
taxpayer and a citizen, he had the legal personality to file a petition demanding that the
PCGG make public any and all negotiations and agreements pertaining to the PCGG's
task of recovering the Marcoses' ill-gotten wealth. Petitioner Chavez further argued that
the matter of recovering the ill-gotten wealth of the Marcoses is an issue of
transcendental importance to the public. The Supreme Court, citing Tañada v. Tuvera,
136 SCRA 27 (1985), Legaspi v. Civil Service Commission, 150 SCRA 530 (1987)
and Albano v. Reyes, 175 SCRA 264 (1989) ruled that petitioner had standing. The Court,
however, went on to elaborate that in any event, the question on the standing of petitioner
Chavez was rendered moot by the intervention of the Jopsons who are among the
legitimate claimants to the Marcos wealth.
16
 384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development
Corporation, wherein the petition sought to compel the Public Estates Authority (PEA) to
disclose all facts on its then on-going negotiations with Amari Coastal Development
Corporation to reclaim portions of Manila Bay, the Supreme Court said that petitioner
Chavez had the standing to bring a taxpayer's suit because the petition sought to compel
PEA to comply with its constitutional duties.
17
 224 SCRA 792 (1993).
18
 Subsequent petitions were filed before this Court seeking similar relief. Other than the
petitions, this Court also received Motions for Intervention from among others, Sen.
Aquilino Pimentel, Jr., and Special Appearances by House Speaker Jose C. de Venecia,
Jr., and Senate President Franklin Drilon.
19
 Supra  note 2 at 10.
20
 Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado
E. Maambong and Father Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former
Minister of Justice and Solicitor General Estelito P. Mendoza, Deans Pacifico Agabin and
Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,.
21
 Rollo, G.R. No. 160261 at 275-292.
22
 Id. at 292.
23
 63 Phil 139 (1936).
24
 Id. at 157-159.
25
 Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Tañada v. Cuenco, 103 Phil 1051
(1957); Ynot v. Intermediate Appellate Court, 148 SCRA 659, 665 (1987).
26
 Const., art. VIII, sec. 1.
27
 5 US 137 (1803).
28
 Id. at 180.
29
 In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for
imprisonment for non-payment of a debt was invalid. In Casanovas v. Hord, 8 Phil 125
(1907), this Court invalidated a statute imposing a tax on mining claims on the ground
that a government grant stipulating that the payment of certain taxes by the grantee would
be in lieu of other taxes was a contractual obligation which could not be impaired by
subsequent legislation. In Concepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of
the Administrative Code, as amended, which provided that judges of the first instance
with the same salaries would, by lot, exchange judicial districts every five years, was
declared invalid for being a usurpation of the power of appointment vested in the
Governor General. In McDaniel v. Apacible, 42 Phil 749 (1922), Act No. 2932, in so far
as it declares open to lease lands containing petroleum which have been validly located
and held, was declared invalid for being a depravation of property without due process of
law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act No. 2868, in so far as it authorized the
Governor-General to fix the price of rice by proclamation and to make the sale of rice in
violation of such a proclamation a crime, was declared an invalid delegation of legislative
power.
30
 Vicente V. Mendoza, Sharing The Passion and Action of our Time 62-53 (2003).
31
 Supra  note 23.
32
 Id. at 156-157.
33
 Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The
Process Of Judicial Review And Decision Making, 37 AMJJUR 17, 24 (1992).
34
 Ibid.
35
 I Record of the Constitutional Commission 434-436 (1986).
36
 31 SCRA 413 (1970)
37
 Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v.
Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Ordillo v.
Commission on Elections, 192 SCRA 100 (1990).
38
 194 SCRA 317 (1991).
39
 Id. at 325 citing Maxwell v. Dow, 176 US 581.
40
 152 SCRA 284 (1987).
41
 Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason &
Co., Inc v. Land Tenure Administration, supra note 36, and I Tañada and Fernando,
Constitution of the Philippines 21 ( Fourth Ed. ).
42
 82 Phil 771 (1949).
43
 Id. at 775.
44
 Supra  note 38.
45
 Id. at 330-331.
46
 Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220
and Household Finance Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808.
47
 Supra  note 2.
48
 Citing Section 3 (6), Article VIII of the Constitution provides:
 (6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No person shall be convicted
without the concurrence of two-thirds of all the Members of the Senate.
49
 Supra  note 21.
50
 506 U.S. 224 (1993).
51
 Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment
Process: A Constitutional and Historical Analysis, 1996, p. 119.
52
 227 SCRA 100 (1993).
53
 Id. at 112.
54
 US Constititon. Section 2. x x x The House of Representatives shall have the sole
Power of Impeachment.
55
 1987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
56
 Supra  note 2 at 355 citing Agresto, The Supreme Court and Constitutional Democracy,
1984, pp. 112-113.
57
 369 U.S. 186 (1962).
58
 141 SCRA 263 (1986).
59
 Supra  note 25.
60
 298 SCRA 756 (1998).
61
 272 SCRA 18 (1997).
62
 201 SCRA 792 (1991).
63
 187 SCRA 377 (1990).
64
 180 SCRA 496 (1989).
65
 Supra note 25.
66
 Supra note 23.
67
 Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331.
68
 Id. at 158-159.
69
 IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568
(1993); House International Building Tenants Association, Inc. v. Intermediate Appellate
Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57.
70
 Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995).
71
 Citing Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997).
72
 Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, 163 SCRA 371,
378 (1988).
73
 Rule 3, Section 2. Parties in interest. — A real party in interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
74
 JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000).
75
 246 SCRA 540 (1995).
76
 Id. at 562-564.
77
 Agan v. PIATCO,  G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA
449, 562-563 (2000) and Baker v. Carr, supra note 57; Vide Gonzales v. Narvasa, 337
SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998).
78
 Chavez v. PCGG, supra  note 15.
79
 Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v.
Morato, supra note 70; Dumlao v. COMELEC, 95 SCRA 392 (1980); Sanidad v.
Comelec, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300 (1966); Pascual v.
Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note
77; Pelaez v. Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA
479 (1965); Iloilo Palay & Corn Planters Association v. Feliciano, 13 SCRA 377 (1965).
80
 BAYAN v. Zamora, supra  note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252
(1989); Vide Del Mar v. PAGCOR, supra  note 79; Gonzales v. Narvasa, supra note
77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note
70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v.
COMELEC, supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor
General, supra  note 79; Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn
Planters Association v. Feliciano, supra note 79; Pascual v. Sec. of Public Works,
supra note 79.
81
 Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra  note
79; Sanidad v. COMELEC, supra note 79; Tan v. Macapagal, 43 SCRA 677 (1972).
82
 Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra  note 70
at 140-141 citing Philconsa v. Enriquez,  235 SCRA 506 (1994); Guingona v. PCGG, 207
SCRA 659 (1992); Gonzales v. Macaraig,  191 SCRA 452 (1990); Tolentino v.
COMELEC, 41 SCRA 702 (1971).
83
 Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note
79.
84
 Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461
(1951) citing Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz,
4245.
85
 Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v.
Hechanova, 118 Phil. 1065 (1963); Pascual v. Secretary, supra note 79.
86
 Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).
87
 MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, G.R. No.
135306, January 28, 2003, citing Industrial Generating Co. v. Jenkins  410 SW 2d
658; Los Angeles County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62.
88
 Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571
(1974), citing Moore's Federal Practice 2d ed., Vol. III, pages 3423-3424; 4 Federal
Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d
711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925).
89
 MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, supra note 87,
dissenting opinion of Justice Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio
Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs of the Passengers of
Doña Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B,
23-257, 23-258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section
12, Rule 3, Rules of Court; Mathay v. Consolidated Bank and Trust Co., supra  note
88; Oposa v. Factoran, supra  note 17.
90
 Kilosbayan v. Guingona, 232 SCRA 110 (1994).
91
 Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive
Secretary, supra note 38; Philconsa v. Giménez, supra note 79; Iloilo Palay and Corn
Planters Association v. Feliciano, supra note 79; Araneta v. Dinglasan, 84 Phil. 368
(1949); vide Tatad v. Secretary of the Department of Energy,  281 SCRA 330
(1997); Santiago v. COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA
386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v. Executive Secretary,  206
SCRA 290 (1992); Osmeña v. COMELEC, 199 SCRA 750 (1991); Basco v.
PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v.
Singson, supra note 64; Dumlao v. COMELEC, supra note 79.
92
 Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing
Gibson vs. Revilla, 92 SCRA 219; Magsaysay-Labrador v. Court of Appeals, 180 SCRA
266, 271 (1989).
93
 Supra  note 79.
94
 Id. at 403.
95
 Supra  note 81.
96
 Id. at 681.
97
 SECTION 3. x x x

(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by
any Member thereof, which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt
thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be
recorded.
98
 Supra note 25.
99
 Id. at 1067.
100
 Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castañeda, 91 Phil. 882
(1952); De la Llana v. COMELEC, 80 SCRA 525 (1977).
101
 Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1
(1961); Cunanan v. Tan, Jr.,5 SCRA 1 (1962); Gonzales v. COMELEC, 21 SCRA 774
(1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC, supra  note
82.
102
 50 SCRA 30 (1973).
103
 Record of the Constitution Commission, Vol. 1, July 10, 1986 at 434-436.
104
 Id. at 439-443.
105
 177 SCRA 668 (1989).
106
 Id. at 695.
107
 203 SCRA 767 (1991).
108
 Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990).
109
 Supra  note 64.
110
 Id. at 501.
111
 Supra note 57.
112
 Id. at 217.
113
 2 Record of the Constitutional Commission at 286.
114
 Id. at 278, 316, 272, 283-284, 286.
115
 76 Phil 516 (1946).
116
 Id. at 522.
117
 Supra  note 37.
118
 Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary
of Agrarian Reform,175 SCRA 343 (1989).
119
 Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA
452, 550 (2001); Demetria v. Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v.
TVA, 297 U.S. 288 (1936).
120
 As adverted to earlier, neither a copy the Resolution nor a record of the hearings
conducted by the House Committee on Justice pursuant to said Resolution was submitted
to the Court by any of the parties.
121
 Rollo, G.R. No. 160310 at 38.
122
 Supra note 107.
123
 Id. at 777 (citations omitted).
124
 Rollo, G.R. No. 160262 at 73.
125
 Supra note 2 at 342.
126
 Perfecto v. Meer, 85 Phil 552, 553 (1950).
127
 Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral
Tribunal, 166 SCRA 651 (1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316
(1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring opinion of J.
Concepcion.
128
 Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993).
129
 Ibid.
130
 Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986).
131
 Supra  note 127.
132
 Estrada v. Desierto, supra note 127.
133
 Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal, supra  note
127; Vargas v. Rilloraza, et al., supra note 127.
134
 Supra  note 119 at 210-211.
135
 Supra  note 119.
136
 Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note
69 at 575; Macasiano v. National Housing Authority, 224 SCRA 236, 242 (1993); Santos
III v. Northwestern Airlines,  210 SCRA 256, 261-262 (1992), National Economic
Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989).
137
 Supra  note 2 at 353.
138
 Supra  note 33 at 32.
139
 Supra  note 102.
140
 Supra  note 33.
141
 249 SCRA 244, 251 (1995).
142
 Id. at 251.
143
 2 Records of the Constitutional Commission at 342-416.
144
 Id. at 416.
145
 Commissioner Maambong's Amicus Curiae Brief at 15.
146
 2 Record of the Constitutional Commission at 375-376, 416
147
 77 Phil. 192 (1946).
148
 Justice Hugo Guiterrez's Amicus Curiae Brief at 7.
149
 109 Phil. 863 (1960).
150
 40 SCRA 58, 68 (1971).
151
 286 U.S. 6, 33 (1932).
152
 277 SCRA 268, 286 (1997).
153
 144 U.S. 1 (1862).
154
 Supra  note 152 at 304-306.
155
 Id. at 311.
156
 Id. at 313.
157
 Supra  note 152 at 314-315.
158
 Supra note 50.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 166006               March 14, 2008

PLANTERS PRODUCTS, INC., Petitioner, 

vs.
FERTIPHIL CORPORATION, Respondent.

DECISION

REYES, R.T., J.:

THE Regional Trial Courts (RTC) have the authority and jurisdiction to consider the
constitutionality of statutes, executive orders, presidential decrees and other issuances. The
Constitution vests that power not only in the Supreme Court but in all Regional Trial Courts.

The principle is relevant in this petition for review on certiorari of the Decision 1 of the Court of
Appeals (CA) affirming with modification that of the RTC in Makati City,2 finding petitioner
Planters Products, Inc. (PPI) liable to private respondent Fertiphil Corporation (Fertiphil) for the
levies it paid under Letter of Instruction (LOI) No. 1465.

The Facts

Petitioner PPI and private respondent Fertiphil are private corporations incorporated under
Philippine laws.3 They are both engaged in the importation and distribution of fertilizers,
pesticides and agricultural chemicals.

On June 3, 1985, then President Ferdinand Marcos, exercising his legislative powers, issued LOI
No. 1465 which provided, among others, for the imposition of a capital recovery component
(CRC) on the domestic sale of all grades of fertilizers in the Philippines.4 The LOI provides:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing
formula a capital contribution component of not less than ₱10 per bag. This capital contribution
shall be collected until adequate capital is raised to make PPI viable. Such capital contribution
shall be applied by FPA to all domestic sales of fertilizers in the Philippines.5 (Underscoring
supplied)

Pursuant to the LOI, Fertiphil paid ₱10 for every bag of fertilizer it sold in the domestic market
to the Fertilizer and Pesticide Authority (FPA). FPA then remitted the amount collected to the
Far East Bank and Trust Company, the depositary bank of PPI. Fertiphil paid ₱6,689,144 to FPA
from July 8, 1985 to January 24, 1986.6

After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of the ₱10 levy. With
the return of democracy, Fertiphil demanded from PPI a refund of the amounts it paid under LOI
No. 1465, but PPI refused to accede to the demand.7

Fertiphil filed a complaint for collection and damages8 against FPA and PPI with the RTC in
Makati. It questioned the constitutionality of LOI No. 1465 for being unjust, unreasonable,
oppressive, invalid and an unlawful imposition that amounted to a denial of due process of
law.9 Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which
used the proceeds to maintain its monopoly of the fertilizer industry.

In its Answer,10 FPA, through the Solicitor General, countered that the issuance of LOI No. 1465
was a valid exercise of the police power of the State in ensuring the stability of the fertilizer
industry in the country. It also averred that Fertiphil did not sustain any damage from the LOI
because the burden imposed by the levy fell on the ultimate consumer, not the seller.

RTC Disposition

On November 20, 1991, the RTC rendered judgment in favor of Fertiphil, disposing as follows:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of the
plaintiff and against the defendant Planters Product, Inc., ordering the latter to pay the former:
 1) the sum of ₱6,698,144.00 with interest at 12% from the time of judicial demand;

2) the sum of ₱100,000 as attorney’s fees;

3) the cost of suit.

SO ORDERED.11

Ruling that the imposition of the ₱10 CRC was an exercise of the State’s inherent power of
taxation, the RTC invalidated the levy for violating the basic principle that taxes can only be
levied for public purpose, viz.:

It is apparent that the imposition of ₱10 per fertilizer bag sold in the country by LOI 1465 is
purportedly in the exercise of the power of taxation. It is a settled principle that the power of
taxation by the state is plenary. Comprehensive and supreme, the principal check upon its abuse
resting in the responsibility of the members of the legislature to their constituents. However,
there are two kinds of limitations on the power of taxation: the inherent limitations and the
constitutional limitations.

One of the inherent limitations is that a tax may be levied only for public purposes:

The power to tax can be resorted to only for a constitutionally valid public purpose. By the same
token, taxes may not be levied for purely private purposes, for building up of private fortunes, or
for the redress of private wrongs. They cannot be levied for the improvement of private property,
or for the benefit, and promotion of private enterprises, except where the aid is incident to the
public benefit. It is well-settled principle of constitutional law that no general tax can be levied
except for the purpose of raising money which is to be expended for public use. Funds cannot be
exacted under the guise of taxation to promote a purpose that is not of public interest. Without
such limitation, the power to tax could be exercised or employed as an authority to destroy the
economy of the people. A tax, however, is not held void on the ground of want of public interest
unless the want of such interest is clear. (71 Am. Jur. pp. 371-372)

In the case at bar, the plaintiff paid the amount of ₱6,698,144.00 to the Fertilizer and Pesticide
Authority pursuant to the ₱10 per bag of fertilizer sold imposition under LOI 1465 which, in
turn, remitted the amount to the defendant Planters Products, Inc. thru the latter’s depository
bank, Far East Bank and Trust Co. Thus, by virtue of LOI 1465 the plaintiff, Fertiphil
Corporation, which is a private domestic corporation, became poorer by the amount of
₱6,698,144.00 and the defendant, Planters Product, Inc., another private domestic corporation,
became richer by the amount of ₱6,698,144.00.

Tested by the standards of constitutionality as set forth in the afore-quoted jurisprudence, it is

quite evident that LOI 1465 insofar as it imposes the amount of ₱10 per fertilizer bag sold in the
country and orders that the said amount should go to the defendant Planters Product, Inc. is
unlawful because it violates the mandate that a tax can be levied only for a public purpose and
not to benefit, aid and promote a private enterprise such as Planters Product, Inc.12
PPI moved for reconsideration but its motion was denied. 13 PPI then filed a notice of appeal with
the RTC but it failed to pay the requisite appeal docket fee. In a separate but related proceeding,
this Court14 allowed the appeal of PPI and remanded the case to the CA for proper disposition.

CA Decision

On November 28, 2003, the CA handed down its decision affirming with modification that of the
RTC, with the following fallo:

IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED,
subject to the MODIFICATION that the award of attorney’s fees is hereby DELETED.15

In affirming the RTC decision, the CA ruled that the lis mota of the complaint for collection was
the constitutionality of LOI No. 1465, thus:

The question then is whether it was proper for the trial court to exercise its power to judicially
determine the constitutionality of the subject statute in the instant case.

As a rule, where the controversy can be settled on other grounds, the courts will not resolve the
constitutionality of a law (Lim v. Pacquing, 240 SCRA 649 [1995]). The policy of the courts is
to avoid ruling on constitutional questions and to presume that the acts of political departments
are valid, absent a clear and unmistakable showing to the contrary.

However, the courts are not precluded from exercising such power when the following requisites
are obtaining in a controversy before it: First, there must be before the court an actual case
calling for the exercise of judicial review. Second, the question must be ripe for adjudication.
Third, the person challenging the validity of the act must have standing to challenge. Fourth, the
question of constitutionality must have been raised at the earliest opportunity; and lastly, the
issue of constitutionality must be the very lis mota of the case (Integrated Bar of the Philippines
v. Zamora, 338 SCRA 81 [2000]).

Indisputably, the present case was primarily instituted for collection and damages. However, a
perusal of the complaint also reveals that the instant action is founded on the claim that the levy
imposed was an unlawful and unconstitutional special assessment. Consequently, the requisite
that the constitutionality of the law in question be the very lis mota of the case is present, making
it proper for the trial court to rule on the constitutionality of LOI 1465.16

The CA held that even on the assumption that LOI No. 1465 was issued under the police power
of the state, it is still unconstitutional because it did not promote public welfare. The CA
explained:

In declaring LOI 1465 unconstitutional, the trial court held that the levy imposed under the said
law was an invalid exercise of the State’s power of taxation inasmuch as it violated the inherent
and constitutional prescription that taxes be levied only for public purposes. It reasoned out that
the amount collected under the levy was remitted to the depository bank of PPI, which the latter
used to advance its private interest.
On the other hand, appellant submits that the subject statute’s passage was a valid exercise of
police power. In addition, it disputes the court a quo’s findings arguing that the collections under
LOI 1465 was for the benefit of Planters Foundation, Incorporated (PFI), a foundation created by
law to hold in trust for millions of farmers, the stock ownership of PPI.

Of the three fundamental powers of the State, the exercise of police power has been
characterized as the most essential, insistent and the least limitable of powers, extending as it
does to all the great public needs. It may be exercised as long as the activity or the property
sought to be regulated has some relevance to public welfare (Constitutional Law, by Isagani A.
Cruz, p. 38, 1995 Edition).

Vast as the power is, however, it must be exercised within the limits set by the Constitution,
which requires the concurrence of a lawful subject and a lawful method. Thus, our courts have
laid down the test to determine the validity of a police measure as follows: (1) the interests of the
public generally, as distinguished from those of a particular class, requires its exercise; and (2)
the means employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals (National Development Company v. Philippine Veterans
Bank, 192 SCRA 257 [1990]).

It is upon applying this established tests that We sustain the trial court’s holding LOI 1465
unconstitutional. To be sure, ensuring the continued supply and distribution of fertilizer in the
country is an undertaking imbued with public interest. However, the method by which LOI 1465
sought to achieve this is by no means a measure that will promote the public welfare. The
government’s commitment to support the successful rehabilitation and continued viability of PPI,
a private corporation, is an unmistakable attempt to mask the subject statute’s impartiality. There
is no way to treat the self-interest of a favored entity, like PPI, as identical with the general
interest of the country’s farmers or even the Filipino people in general. Well to stress,
substantive due process exacts fairness and equal protection disallows distinction where none is
needed. When a statute’s public purpose is spoiled by private interest, the use of police power
becomes a travesty which must be struck down for being an arbitrary exercise of government
power. To rule in favor of appellant would contravene the general principle that revenues derived
from taxes cannot be used for purely private purposes or for the exclusive benefit of private
individuals.17

The CA did not accept PPI’s claim that the levy imposed under LOI No. 1465 was for the benefit
of Planters Foundation, Inc., a foundation created to hold in trust the stock ownership of PPI. The
CA stated:

Appellant next claims that the collections under LOI 1465 was for the benefit of Planters
Foundation, Incorporated (PFI), a foundation created by law to hold in trust for millions of
farmers, the stock ownership of PFI on the strength of Letter of Undertaking (LOU) issued by
then Prime Minister Cesar Virata on April 18, 1985 and affirmed by the Secretary of Justice in
an Opinion dated October 12, 1987, to wit:

"2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to
include in its fertilizer pricing formula a capital recovery component, the proceeds of which will
be used initially for the purpose of funding the unpaid portion of the outstanding capital stock of
Planters presently held in trust by Planters Foundation, Inc. (Planters Foundation), which unpaid
capital is estimated at approximately ₱206 million (subject to validation by Planters and Planters
Foundation) (such unpaid portion of the outstanding capital stock of Planters being hereafter
referred to as the ‘Unpaid Capital’), and subsequently for such capital increases as may be
required for the continuing viability of Planters.

The capital recovery component shall be in the minimum amount of ₱10 per bag, which will be
added to the price of all domestic sales of fertilizer in the Philippines by any importer and/or
fertilizer mother company. In this connection, the Republic hereby acknowledges that the
advances by Planters to Planters Foundation which were applied to the payment of the Planters
shares now held in trust by Planters Foundation, have been assigned to, among others, the
Creditors. Accordingly, the Republic, through FPA, hereby agrees to deposit the proceeds of the
capital recovery component in the special trust account designated in the notice dated April 2,
1985, addressed by counsel for the Creditors to Planters Foundation. Such proceeds shall be
deposited by FPA on or before the 15th day of each month.

The capital recovery component shall continue to be charged and collected until payment in full
of (a) the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy Receivables, (c)
any carrying cost accruing from the date hereof on the amounts which may be outstanding from
time to time of the Unpaid Capital and/or the Subsidy Receivables and (d) the capital increases
contemplated in paragraph 2 hereof. For the purpose of the foregoing clause (c), the ‘carrying
cost’ shall be at such rate as will represent the full and reasonable cost to Planters of servicing its
debts, taking into account both its peso and foreign currency-denominated obligations."
(Records, pp. 42-43)

Appellant’s proposition is open to question, to say the least. The LOU issued by then Prime
Minister Virata taken together with the Justice Secretary’s Opinion does not preponderantly
demonstrate that the collections made were held in trust in favor of millions of farmers.
Unfortunately for appellant, in the absence of sufficient evidence to establish its claims, this
Court is constrained to rely on what is explicitly provided in LOI 1465 – that one of the primary
aims in imposing the levy is to support the successful rehabilitation and continued viability of
PPI.18

PPI moved for reconsideration but its motion was denied.19 It then filed the present petition with
this Court.

Issues

Petitioner PPI raises four issues for Our consideration, viz.:

THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE COLLATERALLY

ATTACKED AND BE DECREED VIA A DEFAULT JUDGMENT IN A CASE FILED FOR
COLLECTION AND DAMAGES WHERE THE ISSUE OF CONSTITUTIONALITY IS NOT
THE VERY LIS MOTA OF THE CASE. NEITHER CAN LOI 1465 BE CHALLENGED BY
ANY PERSON OR ENTITY WHICH HAS NO STANDING TO DO SO.

II

LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF ASSURING THE
FERTILIZER SUPPLY AND DISTRIBUTION IN THE COUNTRY, AND FOR BENEFITING
A FOUNDATION CREATED BY LAW TO HOLD IN TRUST FOR MILLIONS OF
FARMERS THEIR STOCK OWNERSHIP IN PPI CONSTITUTES A VALID LEGISLATION
PURSUANT TO THE EXERCISE OF TAXATION AND POLICE POWER FOR PUBLIC
PURPOSES.

III

THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY COMPONENT WAS

REMITTED TO THE GOVERNMENT, AND BECAME GOVERNMENT FUNDS
PURSUANT TO AN EFFECTIVE AND VALIDLY ENACTED LAW WHICH IMPOSED
DUTIES AND CONFERRED RIGHTS BY VIRTUE OF THE PRINCIPLE OF "OPERATIVE
FACT" PRIOR TO ANY DECLARATION OF UNCONSTITUTIONALITY OF LOI 1465.

IV

THE PRINCIPLE OF UNJUST VEXATION (SHOULD BE ENRICHMENT) FINDS NO

APPLICATION IN THE INSTANT CASE.20 (Underscoring supplied)

Our Ruling

We shall first tackle the procedural issues of locus standi and the jurisdiction of the RTC to
resolve constitutional issues.

Fertiphil has locus standi because it suffered direct injury; doctrine of standing is a mere
procedural technicality which may be waived.

PPI argues that Fertiphil has no locus standi to question the constitutionality of LOI No. 1465
because it does not have a "personal and substantial interest in the case or will sustain direct
injury as a result of its enforcement."21 It asserts that Fertiphil did not suffer any damage from the
CRC imposition because "incidence of the levy fell on the ultimate consumer or the farmers
themselves, not on the seller fertilizer company."22

We cannot agree. The doctrine of locus standi or the right of appearance in a court of justice has
been adequately discussed by this Court in a catena of cases. Succinctly put, the doctrine requires
a litigant to have a material interest in the outcome of a case. In private suits, locus standi
requires a litigant to be a "real party in interest," which is defined as "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the suit."23
In public suits, this Court recognizes the difficulty of applying the doctrine especially when
plaintiff asserts a public right on behalf of the general public because of conflicting public policy
issues. 24 On one end, there is the right of the ordinary citizen to petition the courts to be freed
from unlawful government intrusion and illegal official action. At the other end, there is the
public policy precluding excessive judicial interference in official acts, which may unnecessarily
hinder the delivery of basic public services.

In this jurisdiction, We have adopted the "direct injury test" to determine locus standi in public
suits. In People v. Vera,25 it was held that a person who impugns the validity of a statute must
have "a personal and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result." The "direct injury test" in public suits is similar to the "real party in
interest" rule for private suits under Section 2, Rule 3 of the 1997 Rules of Civil Procedure.26

Recognizing that a strict application of the "direct injury" test may hamper public interest, this
Court relaxed the requirement in cases of "transcendental importance" or with "far reaching
implications." Being a mere procedural technicality, it has also been held that locus standi may
be waived in the public interest.27

Whether or not the complaint for collection is characterized as a private or public suit, Fertiphil
has locus standi to file it. Fertiphil suffered a direct injury from the enforcement of LOI No.
1465. It was required, and it did pay, the ₱10 levy imposed for every bag of fertilizer sold on the
domestic market. It may be true that Fertiphil has passed some or all of the levy to the ultimate
consumer, but that does not disqualify it from attacking the constitutionality of the LOI or from
seeking a refund. As seller, it bore the ultimate burden of paying the levy. It faced the possibility
of severe sanctions for failure to pay the levy. The fact of payment is sufficient injury to
Fertiphil.

Moreover, Fertiphil suffered harm from the enforcement of the LOI because it was compelled to
factor in its product the levy. The levy certainly rendered the fertilizer products of Fertiphil and
other domestic sellers much more expensive. The harm to their business consists not only in
fewer clients because of the increased price, but also in adopting alternative corporate strategies
to meet the demands of LOI No. 1465. Fertiphil and other fertilizer sellers may have shouldered
all or part of the levy just to be competitive in the market. The harm occasioned on the business
of Fertiphil is sufficient injury for purposes of locus standi.

Even assuming arguendo that there is no direct injury, We find that the liberal policy consistently
adopted by this Court on locus standi must apply. The issues raised by Fertiphil are of paramount
public importance. It involves not only the constitutionality of a tax law but, more importantly,
the use of taxes for public purpose. Former President Marcos issued LOI No. 1465 with the
intention of rehabilitating an ailing private company. This is clear from the text of the LOI. PPI
is expressly named in the LOI as the direct beneficiary of the levy. Worse, the levy was made
dependent and conditional upon PPI becoming financially viable. The LOI provided that "the
capital contribution shall be collected until adequate capital is raised to make PPI viable."

The constitutionality of the levy is already in doubt on a plain reading of the statute. It is Our
constitutional duty to squarely resolve the issue as the final arbiter of all justiciable
controversies. The doctrine of standing, being a mere procedural technicality, should be waived,
if at all, to adequately thresh out an important constitutional issue.

RTC may resolve constitutional issues; the constitutional issue was adequately raised in the
complaint; it is the lis mota of the case.

PPI insists that the RTC and the CA erred in ruling on the constitutionality of the LOI. It asserts
that the constitutionality of the LOI cannot be collaterally attacked in a complaint for
collection.28 Alternatively, the resolution of the constitutional issue is not necessary for a
determination of the complaint for collection.29

Fertiphil counters that the constitutionality of the LOI was adequately pleaded in its complaint. It
claims that the constitutionality of LOI No. 1465 is the very lis mota of the case because the trial
court cannot determine its claim without resolving the issue.30

It is settled that the RTC has jurisdiction to resolve the constitutionality of a statute, presidential
decree or an executive order. This is clear from Section 5, Article VIII of the 1987 Constitution,
which provides:

SECTION 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is
in question. (Underscoring supplied)

In Mirasol v. Court of Appeals,31 this Court recognized the power of the RTC to resolve
constitutional issues, thus:

On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to
consider the constitutionality of a statute, presidential decree, or executive order. The
Constitution vests the power of judicial review or the power to declare a law, treaty, international
or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only
in this Court, but in all Regional Trial Courts.32

In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign Affairs, 33 this Court
reiterated:

There is no denying that regular courts have jurisdiction over cases involving the validity or
constitutionality of a rule or regulation issued by administrative agencies. Such jurisdiction,
however, is not limited to the Court of Appeals or to this Court alone for even the regional trial
courts can take cognizance of actions assailing a specific rule or set of rules promulgated by
administrative bodies. Indeed, the Constitution vests the power of judicial review or the power to
declare a law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts.34

Judicial review of official acts on the ground of unconstitutionality may be sought or availed of
through any of the actions cognizable by courts of justice, not necessarily in a suit for declaratory
relief. Such review may be had in criminal actions, as in People v. Ferrer 35 involving the
constitutionality of the now defunct Anti-Subversion law, or in ordinary actions, as in Krivenko
v. Register of Deeds36 involving the constitutionality of laws prohibiting aliens from acquiring
public lands. The constitutional issue, however, (a) must be properly raised and presented in the
case, and (b) its resolution is necessary to a determination of the case, i.e., the issue of
constitutionality must be the very lis mota presented.37

Contrary to PPI’s claim, the constitutionality of LOI No. 1465 was properly and adequately
raised in the complaint for collection filed with the RTC. The pertinent portions of the complaint
allege:

6. The CRC of ₱10 per bag levied under LOI 1465 on domestic sales of all grades of fertilizer in
the Philippines, is unlawful, unjust, uncalled for, unreasonable, inequitable and
oppressive because:

xxxx

(c) It favors only one private domestic corporation, i.e., defendant PPPI, and imposed at the
expense and disadvantage of the other fertilizer importers/distributors who were themselves in
tight business situation and were then exerting all efforts and maximizing management and
marketing skills to remain viable;

xxxx

(e) It was a glaring example of crony capitalism, a forced program through which the PPI, having
been presumptuously masqueraded as "the" fertilizer industry itself, was the sole and anointed
beneficiary;

7. The CRC was an unlawful; and unconstitutional special assessment and its imposition is
tantamount to illegal exaction amounting to a denial of due process since the persons of entities
which had to bear the burden of paying the CRC derived no benefit therefrom; that on the
contrary it was used by PPI in trying to regain its former despicable monopoly of the fertilizer
industry to the detriment of other distributors and importers.38 (Underscoring supplied)

The constitutionality of LOI No. 1465 is also the very lis mota of the complaint for collection.
Fertiphil filed the complaint to compel PPI to refund the levies paid under the statute on the
ground that the law imposing the levy is unconstitutional. The thesis is that an unconstitutional
law is void. It has no legal effect. Being void, Fertiphil had no legal obligation to pay the levy.
Necessarily, all levies duly paid pursuant to an unconstitutional law should be refunded under the
civil code principle against unjust enrichment. The refund is a mere consequence of the law
being declared unconstitutional. The RTC surely cannot order PPI to refund Fertiphil if it does
not declare the LOI unconstitutional. It is the unconstitutionality of the LOI which triggers the
refund. The issue of constitutionality is the very lis mota of the complaint with the RTC.

The ₱10 levy under LOI No. 1465 is an exercise of the power of taxation.

At any rate, the Court holds that the RTC and the CA did not err in ruling against the
constitutionality of the LOI.

PPI insists that LOI No. 1465 is a valid exercise either of the police power or the power of
taxation. It claims that the LOI was implemented for the purpose of assuring the fertilizer supply
and distribution in the country and for benefiting a foundation created by law to hold in trust for
millions of farmers their stock ownership in PPI.

Fertiphil counters that the LOI is unconstitutional because it was enacted to give benefit to a
private company. The levy was imposed to pay the corporate debt of PPI. Fertiphil also argues
that, even if the LOI is enacted under the police power, it is still unconstitutional because it did
not promote the general welfare of the people or public interest.

Police power and the power of taxation are inherent powers of the State. These powers are
distinct and have different tests for validity. Police power is the power of the State to enact
legislation that may interfere with personal liberty or property in order to promote the general
welfare,39 while the power of taxation is the power to levy taxes to be used for public purpose.
The main purpose of police power is the regulation of a behavior or conduct, while taxation is
revenue generation. The "lawful subjects" and "lawful means" tests are used to determine the
validity of a law enacted under the police power.40 The power of taxation, on the other hand, is
circumscribed by inherent and constitutional limitations.

We agree with the RTC that the imposition of the levy was an exercise by the State of its
taxation power. While it is true that the power of taxation can be used as an implement of police
power,41 the primary purpose of the levy is revenue generation. If the purpose is primarily
revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is
properly called a tax.42

In Philippine Airlines, Inc. v. Edu,43 it was held that the imposition of a vehicle registration fee is
not an exercise by the State of its police power, but of its taxation power, thus:

It is clear from the provisions of Section 73 of Commonwealth Act 123 and Section 61 of the
Land Transportation and Traffic Code that the legislative intent and purpose behind the law
requiring owners of vehicles to pay for their registration is mainly to raise funds for the
construction and maintenance of highways and to a much lesser degree, pay for the operating
expenses of the administering agency. x x x Fees may be properly regarded as taxes even though
they also serve as an instrument of regulation.

Taxation may be made the implement of the state's police power (Lutz v. Araneta, 98 Phil.
148). If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial
purposes, then the exaction is properly called a tax. Such is the case of motor vehicle registration
fees. The same provision appears as Section 59(b) in the Land Transportation Code. It is patent
therefrom that the legislators had in mind a regulatory tax as the law refers to the imposition on
the registration, operation or ownership of a motor vehicle as a "tax or fee." x x x Simply put, if
the exaction under Rep. Act 4136 were merely a regulatory fee, the imposition in Rep. Act 5448
need not be an "additional" tax. Rep. Act 4136 also speaks of other "fees" such as the special
permit fees for certain types of motor vehicles (Sec. 10) and additional fees for change of
registration (Sec. 11). These are not to be understood as taxes because such fees are very
minimal to be revenue-raising. Thus, they are not mentioned by Sec. 59(b) of the Code as taxes
like the motor vehicle registration fee and chauffeurs’ license fee. Such fees are to go into the
expenditures of the Land Transportation Commission as provided for in the last proviso of Sec.
61.44(Underscoring supplied)

The ₱10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy,
no doubt, was a big burden on the seller or the ultimate consumer. It increased the price of a bag
of fertilizer by as much as five percent.45 A plain reading of the LOI also supports the conclusion
that the levy was for revenue generation. The LOI expressly provided that the levy was imposed
"until adequate capital is raised to make PPI viable."

Taxes are exacted only for a public purpose. The ₱10 levy is unconstitutional because it was not
for a public purpose. The levy was imposed to give undue benefit to PPI.

An inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a
public purpose. They cannot be used for purely private purposes or for the exclusive benefit of
private persons.46 The reason for this is simple. The power to tax exists for the general welfare;
hence, implicit in its power is the limitation that it should be used only for a public purpose. It
would be a robbery for the State to tax its citizens and use the funds generated for a private
purpose. As an old United States case bluntly put it: "To lay with one hand, the power of the
government on the property of the citizen, and with the other to bestow it upon favored
individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery
because it is done under the forms of law and is called taxation."47

The term "public purpose" is not defined. It is an elastic concept that can be hammered to fit
modern standards. Jurisprudence states that "public purpose" should be given a broad
interpretation. It does not only pertain to those purposes which are traditionally viewed as
essentially government functions, such as building roads and delivery of basic services, but also
includes those purposes designed to promote social justice. Thus, public money may now be
used for the relocation of illegal settlers, low-cost housing and urban or agrarian reform.

While the categories of what may constitute a public purpose are continually expanding in light
of the expansion of government functions, the inherent requirement that taxes can only be
exacted for a public purpose still stands. Public purpose is the heart of a tax law. When a tax law
is only a mask to exact funds from the public when its true intent is to give undue benefit and
advantage to a private enterprise, that law will not satisfy the requirement of "public purpose."
The purpose of a law is evident from its text or inferable from other secondary sources. Here, We
agree with the RTC and that CA that the levy imposed under LOI No. 1465 was not for a public
purpose.

First, the LOI expressly provided that the levy be imposed to benefit PPI, a private company.
The purpose is explicit from Clause 3 of the law, thus:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing
formula a capital contribution component of not less than ₱10 per bag. This capital contribution
shall be collected until adequate capital is raised to make PPI viable. Such capital contribution
shall be applied by FPA to all domestic sales of fertilizers in the Philippines.48 (Underscoring
supplied)

It is a basic rule of statutory construction that the text of a statute should be given a literal
meaning. In this case, the text of the LOI is plain that the levy was imposed in order to raise
capital for PPI. The framers of the LOI did not even hide the insidious purpose of the law. They
were cavalier enough to name PPI as the ultimate beneficiary of the taxes levied under the LOI.
We find it utterly repulsive that a tax law would expressly name a private company as the
ultimate beneficiary of the taxes to be levied from the public. This is a clear case of crony
capitalism.

Second, the LOI provides that the imposition of the ₱10 levy was conditional and dependent
upon PPI becoming financially "viable." This suggests that the levy was actually imposed to
benefit PPI. The LOI notably does not fix a maximum amount when PPI is deemed financially
"viable." Worse, the liability of Fertiphil and other domestic sellers of fertilizer to pay the levy is
made indefinite. They are required to continuously pay the levy until adequate capital is raised
for PPI.

Third, the RTC and the CA held that the levies paid under the LOI were directly remitted and
deposited by FPA to Far East Bank and Trust Company, the depositary bank of PPI. 49 This
proves that PPI benefited from the LOI. It is also proves that the main purpose of the law was to
give undue benefit and advantage to PPI.

Fourth, the levy was used to pay the corporate debts of PPI. A reading of the Letter of
Understanding50 dated May 18, 1985 signed by then Prime Minister Cesar Virata reveals that PPI
was in deep financial problem because of its huge corporate debts. There were pending petitions
for rehabilitation against PPI before the Securities and Exchange Commission. The government
guaranteed payment of PPI’s debts to its foreign creditors. To fund the payment, President
Marcos issued LOI No. 1465. The pertinent portions of the letter of understanding read:

Republic of the Philippines

Office of the Prime Minister
Manila

LETTER OF UNDERTAKING
May 18, 1985

TO: THE BANKING AND FINANCIAL INSTITUTIONS

LISTED IN ANNEX A HERETO WHICH ARE
CREDITORS (COLLECTIVELY, THE "CREDITORS")
OF PLANTERS PRODUCTS, INC. ("PLANTERS")

Gentlemen:

This has reference to Planters which is the principal importer and distributor of fertilizer,
pesticides and agricultural chemicals in the Philippines. As regards Planters, the Philippine
Government confirms its awareness of the following: (1) that Planters has outstanding
obligations in foreign currency and/or pesos, to the Creditors, (2) that Planters is currently
experiencing financial difficulties, and (3) that there are presently pending with the Securities
and Exchange Commission of the Philippines a petition filed at Planters’ own behest for the
suspension of payment of all its obligations, and a separate petition filed by Manufacturers
Hanover Trust Company, Manila Offshore Branch for the appointment of a rehabilitation
receiver for Planters.

In connection with the foregoing, the Republic of the Philippines (the "Republic") confirms that
it considers and continues to consider Planters as a major fertilizer distributor. Accordingly, for
and in consideration of your expressed willingness to consider and participate in the effort to
rehabilitate Planters, the Republic hereby manifests its full and unqualified support of the
successful rehabilitation and continuing viability of Planters, and to that end, hereby binds and
obligates itself to the creditors and Planters, as follows:

xxxx

2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to include
in its fertilizer pricing formula a capital recovery component, the proceeds of which will be used
initially for the purpose of funding the unpaid portion of the outstanding capital stock of Planters
presently held in trust by Planters Foundation, Inc. ("Planters Foundation"), which unpaid capital
is estimated at approximately ₱206 million (subject to validation by Planters and Planters
Foundation) such unpaid portion of the outstanding capital stock of Planters being hereafter
referred to as the "Unpaid Capital"), and subsequently for such capital increases as may be
required for the continuing viability of Planters.

xxxx

The capital recovery component shall continue to be charged and collected until payment in full
of (a) the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy Receivables, (c)
any carrying cost accruing from the date hereof on the amounts which may be outstanding from
time to time of the Unpaid Capital and/or the Subsidy Receivables, and (d) the capital increases
contemplated in paragraph 2 hereof. For the purpose of the foregoing clause (c), the "carrying
cost" shall be at such rate as will represent the full and reasonable cost to Planters of servicing its
debts, taking into account both its peso and foreign currency-denominated obligations.
REPUBLIC OF THE PHILIPPINES

By:

(signed)
CESAR E. A. VIRATA
Prime Minister and Minister of Finance51

It is clear from the Letter of Understanding that the levy was imposed precisely to pay the
corporate debts of PPI. We cannot agree with PPI that the levy was imposed to ensure the
stability of the fertilizer industry in the country. The letter of understanding and the plain text of
the LOI clearly indicate that the levy was exacted for the benefit of a private corporation.

All told, the RTC and the CA did not err in holding that the levy imposed under LOI No. 1465
was not for a public purpose. LOI No. 1465 failed to comply with the public purpose
requirement for tax laws.

The LOI is still unconstitutional even if enacted under the police power; it did not promote
public interest.

Even if We consider LOI No. 1695 enacted under the police power of the State, it would still be
invalid for failing to comply with the test of "lawful subjects" and "lawful means." Jurisprudence
states the test as follows: (1) the interest of the public generally, as distinguished from those of
particular class, requires its exercise; and (2) the means employed are reasonably necessary for
the accomplishment of the purpose and not unduly oppressive upon individuals.52

For the same reasons as discussed, LOI No. 1695 is invalid because it did not promote public
interest. The law was enacted to give undue advantage to a private corporation. We quote with
approval the CA ratiocination on this point, thus:

It is upon applying this established tests that We sustain the trial court’s holding LOI 1465
unconstitutional.1awphil To be sure, ensuring the continued supply and distribution of fertilizer
in the country is an undertaking imbued with public interest. However, the method by which LOI
1465 sought to achieve this is by no means a measure that will promote the public welfare. The
government’s commitment to support the successful rehabilitation and continued viability of PPI,
a private corporation, is an unmistakable attempt to mask the subject statute’s impartiality. There
is no way to treat the self-interest of a favored entity, like PPI, as identical with the general
interest of the country’s farmers or even the Filipino people in general. Well to stress,
substantive due process exacts fairness and equal protection disallows distinction where none is
needed. When a statute’s public purpose is spoiled by private interest, the use of police power
becomes a travesty which must be struck down for being an arbitrary exercise of government
power. To rule in favor of appellant would contravene the general principle that revenues derived
from taxes cannot be used for purely private purposes or for the exclusive benefit of private
individuals. (Underscoring supplied)
The general rule is that an unconstitutional law is void; the doctrine of operative fact is
inapplicable.

PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared
unconstitutional. It banks on the doctrine of operative fact, which provides that an
unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the
levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional.

We cannot agree. It is settled that no question, issue or argument will be entertained on appeal,
unless it has been raised in the court a quo.53 PPI did not raise the applicability of the doctrine of
operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to
extricate itself from the dire effects of an unconstitutional law.

At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is
void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It
is, in legal contemplation, inoperative as if it has not been passed.54 Being void, Fertiphil is not
required to pay the levy. All levies paid should be refunded in accordance with the general civil
code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil
Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall
not be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play.55 It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and may
have consequences which cannot always be ignored. The past cannot always be erased by a new
judicial declaration.56

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden
on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy57 or would put in
limbo the acts done by a municipality in reliance upon a law creating it.58

Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil
under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the
levies paid were remitted and deposited to its bank account. Quite the reverse, it would be
inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of
Fertiphil. Article 22 of the Civil Code explicitly provides that "every person who, through an act
of performance by another comes into possession of something at the expense of the latter
without just or legal ground shall return the same to him." We cannot allow PPI to profit from an
unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by
Fertiphil.
WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated November 28,
2003 is AFFIRMED.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes
1
 Rollo, pp. 51-59. Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate
Justices Bienvenido L. Reyes and Arsenio L. Magpale, concurring.
2
 Id. at 75-77. Penned by Judge Teofilo L. Guadiz, Jr.
3
 Id. at 8.
4
 Id. at 75.
5
 Id. at 155.
6
 Id. at 76.
7
 Id.
8
 Id. at 195-202.
9
 Id. at 196.
10
 Id. at 66-73, 277.
11
 Id. at 77.
12
 Id. at 76-77.
13
 Id. at 14.
14
 Id. at 83-93. G.R. No. 156278, entitled "Planters Products, Inc. v. Fertiphil
Corporation."
15
 Id. at 59.
16
 Id. at 54-55.
17
 Id. at 129-130.
18
 Id. at 55-58.
19
 Id. at 61-62.
20
 Id. at 15.
21
 Id. at 21.
22
 Id.
23
 Rules of Civil Procedure (1997), Rule 3, Sec. 2 provides:
 "A real party-in-interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by law of these Rules, every action must be prosecuted or
defended in the name of the real party-in-interest."
24
 David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400,
171489 & 171424, May 3, 2006, 489 SCRA 160.
25
 65 Phil. 56 (1937).
26
 See note 23.
27
 See note 24.
28
 Rollo, p. 17.
29
 Id. at 18.
30
 Id. at 290.
31
 G.R. No. 128448, February 1, 2001, 351 SCRA 44.
32
 Mirasol v. Court of Appeals, id. at 51.
33
 G.R. No. 152214, September 19, 2006, 502 SCRA 295.
34
 Equi-Asia Placement, Inc. v. Department of Foreign Affairs, id. at 309.
35
 G.R. Nos. L-32613-14, December 27, 1972, 48 SCRA 382.
36
 79 Phil. 461 (1947).
37
 Tropical Homes, Inc. v. National Housing Authority, G.R. No. L-48672, July 31, 1987,
152 SCRA 540.
38
 Rollo, pp. 197-198.
39
 Edu v. Ericta, G.R. No. L-32096, October 24, 1970, 35 SCRA 481.
40
 Lim v. Pacquing, G.R. Nos. 115044 & 117263, January 27, 1995, 240 SCRA 649.
41
 Lutz v. Araneta, 98 Phil. 148 (1966).
42
 Philippine Airlines, Inc. v. Edu, G.R. No. L-41383, August 15, 1988, 164 SCRA 320.
43
 Supra.
44
 Philippine Airlines, Inc. v. Edu, supra note 42, at 327-329.
45
 Rollo, p. 197.
46
 Cruz, I., Constitutional Law, 1998 ed., p. 90.
47
 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary,
1996 ed., p. 714.
48
 Rollo, p. 155.
49
 Id. at 52, 75-76.
50
 Id. at 150-154.
51
 Id.
52
 Id. at 55-58.
53
 Cojuangco, Jr. v. Court of Appeals, G.R. No. 119398, July 2, 1999, 309 SCRA 602,
614-615.
54
 See note 46, at 33-34.
55
 Republic v. Court of Appeals, G.R. No. 79732, November 8, 1993, 227 SCRA 509.
56
 Peralta v. Civil Service Commission, G.R. No. 95832, August 10, 1992, 212 SCRA
425.
57
 Tan v. Barrios, G.R. Nos. 85481-82, October 18, 1990, 190 SCRA 686, citing Aquino,
Jr. v. Military Commission No. 2, G.R. No. L-37364, May 9, 1975, 63 SCRA 546.
58
 Id., citing Municipality of Malabang v. Benito, G.R. No. L-28113, March 28, 1969, 27
SCRA 533.